Howes v. Patterson & Co. , 76 Ga. 689 ( 1886 )

Hall, Justice.

The plaintiff sued- out an attachment against R, A. Patterson, T. M. Rutherford and R. F. Patterson, as partners under the firm name of R. A. Patterson & Go., Upon the ground that they “ reside out of the state of Géorgia,” and levied it by serving a summons of garnishment upon a party indebted to them or having in his’ hands effects belonging, to them. They appeared and dissolved the garnishment by giving the bond and security required by law for that purpose.

On the hearing, the plaintiff failed to prove that the firm, compqsed of the individuals above named, were indebted todiim, but did prove that a firm composed of R. A. Pattérsón-, T. C. Williams and James Thomas, Jr., were his debtors.;. To make his pleadings conform to his proof, ..the plaintiff moved to strike from the declaration the names of Rutherford and R. F. Patterson and insert in lieu thereof the names of Williams and Thomas; the court allowed the names of Rutherford and R. F. Patterson to be stricken, but refused to allow those of Williams and Thomas to be inserted in their stead. To the refusal of the court to allow this lai ter amendment, exception was taken. Plaintiff then asked that he might be allowed to take a judgment against R. A. Patterson alone, who appeared to be a member of both firms, but the court denied this motion, and refused a judgment either upon the bond given to dissolve or a general judgment against the only defendant then remaining; thereupon counsel for the original defendants in the attachment moved to dismiss the suit, and the motion was sustained. Three errors are assigned to this judgment:

(1.) That the court erred in refusing to allow the amendment, by inserting the .names of Williams and Thomas, after permitting plaintiff, on his own motion, to strike from the declaration those of Rutherford and R. F. Patterson.

(2.) In refusing plaintiff’s motion to take either a special or general judgment, or both, against R. A. Patterson.

(3.) In dismissing the suit upon defendant’s motion.

1. The insertion of other names than those stricken on motion would, as it seems to us, have amounted to the addition ,of new and distinct parties as defendants, which Could not be done, unless it had been, expressly provided for by law (Code, §3480), and we are not aware of any provision of law which, under the facts in proof, would allow it to be done, unless it be permissible under §3484 of the Code, which relates to the addition of the names of parties omitted in suits by or against partners. No omission, however, is shown. The proof establishes the fact that the suit was against the wrong partnership—one which was not the plaintiff’s debtor. Surely a suit brought against Ai could not, under this power of amendment, be converted.1 into one against B., who had never been served and had never appeared or authorized any one to appear and plead for him; so if one firm be sued, the action cannot be so changed by amendment as to make another firm, composed in part of other and distinct individuals from those mentioned in the suit, liable.

2. A suit against a partnership can scarcely be turned into one against one of the members of the firm; and especially is this true where the foundation of the suit is an attachment, which has been so far turned into a common law suit as to give to the plaintiff a right to enter both a special judgment upon the bond and a general judgment against the defendants in the attachment. The sureties became bound for the firm, and not for any individual member thereof, and this repels the ability of the court to give j udgment against them on their obligation, where, by amendment, all of them except one is dropped from the action. They entered into no such engagement, and have a right to stand upon the terms of their obligation. And as to the general j udgment against the only party retained by the amendment made, we think that could be hardly rendered against him, unless it was shown that he, and not the firm of which he was a member, had by his bond consented that the suit might proceed against-him as an individual. It is generally true, that where the-suit is against a partnership, all the members thereof must be in the action, unless there is some sufficient reason recognized by the law for omitting one or more of them, and that the reason for so doing should be alleged in the pleadings, or should otherwise appear on the face of the proceeding.

3. This being the cáse, we áre led to 'the conclusion that there was no error in thé several rulings; of the court, and ¡that none of the' exceptions tapen to the ultimate judgment, or the several steps that led to it, can be sustained.

Judgment affirmed.