May v. Clanton , 208 Ala. 588 ( 1922 )

Plaintiff (appellee) stated his cause of action in several different counts. He sought to recover of the sheriff and his official bondsmen damages for taking an automobile, the property of plaintiff, under process against the Home Steam Laundry. This process, an execution, had issued in a cause entitled H. O. Reno, a partnership composed of Harry D. and Harry O. Reno, versus Home Steam Laundry; defendant in that cause not being otherwise described in the summons and complaint or judgment. The service in that cause was shown by the sheriff's return indorsed on the summons as follows:

"I have executed the within by handing a copy of the same to Home Steam Laundry, served on Walter L. Clanton, manager, this 23d day of February, 1920. J. V. May, Sheriff, by T. W. McGuthra, Deputy Sheriff."

The record of that cause showed a judgment by default. On the trial of the pending cause the court held the judgment in the former cause void and gave the general charge for plaintiff, leaving the jury to assess damages.

We have quoted the sheriff's return in order that appellant may have the record to show a full statement of his case; but the court is of opinion that it was not for the sheriff to determine the capacity in which the so-called defendant was sued, or by his return to give authority or direction to the pleadings in the cause. Ferrell v. Ross, 200 Ala. 90, 75 So. 466.

The record of the former action showed no judgment against the plaintiff in this. Plaintiff was not named as a defendant and there could be no judgment against him. This results, we think, from familiar principles. Had the former suit been brought against a suable entity, perhaps parol evidence would have been admissible to show his identity with this plaintiff. Tarleton v. Pollard,25 Ala. 300, 60 Am. Dec. 515. But it does not appear that Home Steam Laundry was a suable entity. Home Steam Laundry was, we may assume, merely the name of a business conducted by plaintiff. Plaintiff was liable for all obligations incurred in the prosecution of that business; but, to enforce any such obligation, suit should have been brought against plaintiff in the only name by which he appears to have been known. Defendant quotes the text of 29 Cyc. 270, in the note to which our case of Carlisle v. People's Bank, 122 Ala. 446, 26 So. 115, is cited along with some others; but the cases do not sustain the proposition that a party may be sued in the name only of any artificial designation he may use to identify his business, not himself. Nor does Wahouma Drug Co. v. Clay, 193 Ala. 79,69 So. 82, sustain plaintiff's position in this cause. The decision in that case was placed upon the conclusion that the name imported a partnership and section 2506 of the Code providing that partnerships may be sued in their common name. But that decision, conceding its soundness, has no application in this case, for it is not sought to bind defendant as a partner. Nor was Home Steam Laundry a corporation.

Affirmed.

All the Justices concur, except GARDNER, J., who dissents.