
    Gaiennie v. Akin’s Executor & Al.
    While a commercial partnership is in existence, service of citation on one of the members of the firm is good against all of them; but after its dissolution every member intended to be sued and made a party must bo served with citation separately. — See 6 L. 573 (YL), and cases there noted.
    The liquidator of a partnership has no authority to stand in judgment for the other partners or members of the firm, unless a special power he given to that effect
    
      The Louisiana Code requires express and special power to be given whenever the things to be done are not merely acts of administration.
    So, whore the partners of a commercial firm were sued after the dissolution of the partnership and one only was cited, who appeared and put in an answer for himself: — held, that the judgment was null and void as to the other who was not separately cited. — 1IT. S. 9; 8 IT. S. 145; 6 L. 577; 16 L. 570; Post, 468; 2 A. 408; See 1 M. 220.
    Appeal from the court of the first judicial district.
    This is an action of nullity and to stay an execution, which had issued on a judgment obtained hy Oliver Akin in his lifetime against Gaiennié' and Deneufbourg, after the dissolution of their partnership.
    The present plaintiff, Gaiennié, alleges that he had not been cited in said suit, and was ignorant of it until after judgment rendered; that said judgment is a nullity, as regards him; having been rendered after dissolution of the partnership and without notice or citation having been served on him. "
    He further shows in a supplemental petition that Deneufbourg on pretence of having paid said judgment and being subrogated to Akin’s rights therein, has taken out a capias for one half the amount, against him (plaintiff). He prays for injunction to stay all proceedings against him on, or in consequence of said judgment, on the ground that it is a nullity as respects him and that it be declared null.
    The defendant, Deneufbourg, appeared hy counsel and filed exceptions to the plaintiff’s petition; and averred that Gaiennié was properly cited in the suit of Akin, by the name of the partnership as he (defendant) was liquidator of the concern.
    [43] 2. Service of citation was made on him, defendant, in person as the liquidator of the firm, which was sufficient notice to all of the members.
    3. That Gaiennié had full and repeated notice of the pendency of the suit, in which judgment was rendered against them.
    It was admitted Deneufbourg was the liquidator of the firm, and that citation was alone served on him. He appeared and put in an answer defending himself alone, and throwing the burden of the suit on his co-partner, on the ground that the debt inured to his benefit.
    There was judgment sustaining the exceptions, and against the-plaintiff; dissolving the injunction with damages, interest and costs, and he appealed.
    
      C. Janin, for the plaintiff and appellant,
    contended, that the judgment should be reversed.
    1. Because no citation was served on Gaiennié in the suit of Oliver Aldn v. Gaiennié and Beneufiourg, instituted after dissolution of their partnership, in which suit a judgment was rendered, and it forms the object of this action of nullity. Code of Practice, art. 606.
    2. Because a member of a firm, merely charged with the liquidation of the partnership affairs, is not, by virtue of such a mandate, empowered to appear in court, and defend suit for the other member. Peters and Millard & al. v. Gardiere, Syndic, 8 La. Rep. 565.
    3. Because, should such a mandate contain the power of appearing in court, it is in evidence that the liquidator did not act in that capacity, and made a separate answer incompatible with the exercise of such a mandate.
    
      Canon, contra,
    insisted on the affirmance of the judgment.
   Morphy, J.

delivered the opinion of the court.

This action is brought to annul a judgment obtained by one Oliver [44] Akin against plaintiff, as a member of the firm of “ Gaiennié & Deneufbourg,” on the ground that no citation had been served on him, the plaintiff; that the partnership of which he had been a member had been dissolved by mutual consent several months before the institution of the' suit; that public notice of such dissolution had been given in the public papers, and that the plaintiff in that suit had had direct notice thereof by the separate answer which Deneufbourg had filed long previous to the rendition of the judgment sought to be avoided. Plaintiff sued out an injunction to arrest the execution of a fieri facias against him under such judgment. On the very day the present suit was brought, Deneufbourg having satisfied the judge below that he had paid up the amount of said judgment, and was, by such payment, subrogated to the rights of Akin, under it, he was allowed to take out against the plaintiff a capias ad satisfaciendum for one half of the judgment and costs; but this writ was also enjoined on the grounds already stated. The defence set up was that the citation served upon Deneufbourg, one of the partners of the old firm, was good or binding on plaintiff, because at the dissolution of the partnership, Deneufbourg had been charged with the liquidation of the accounts. The court below dissolved the injunctions previously granted and decreed damages against the plaintiff and his surety on the injunction bond.

We think the court erred; it is true that during the existence of a commercial partnership, service of citation on one of the members is good against all of them, but after its dissolution, every member intended to be made a party to a suit must be served with a separate citation. The general power given to one partner to settle and liquidate the accounts of the partnership does not appear to us to confer on him greater rights than each member of the firm after its dissolution could have possessed for the purpose of [45] liquidation, had no liquidator been appointed. It relates to the payment of acknowledged debts and the collection of all sums due to the firm, but does not enable the liquidator to stand in judgment for the other partners unless a special power to that effect be granted. Our Code requires express and special power to be given whenever the things to be done are not merely acts of administration. La. Code, art. 2966; 8 La. Rep. 568; 18 Id. 484. But even could the general power to settle all accounts be considered as sufficient to enable Deneufbourg to defend a suit brought against his former partner, the record shows that he was not sued as liquidator of the partnership; and that he did not appear in the suit in that capacity, he appeared and filed for himself a separate answer tending to throw the burden of the whole debt on his late partner, Gaiennié, on the ground that the draft sued on had never been accepted for the good of the firm; but had been accepted by Gaiennié for his own private use and benefit without his (Deneufbourg’s) knowledge and in fraud of his rights. Alter such an answer, Gaiennié could not be considered as represented in the suit or as legally cited. Kb judgment by default could be taken against him, without a separate citation being first served upon him according to law; this not having been done, all the proceedings in tlio suit were as to him absolutely null and void. Code of Practice, arts. 206 and 606.

It is therefore ordered and adjudged, that the judgment of the district court be reversed; that the injunctions sued out by plaintiff be made perpetual, and that the appellee pay costs in both courts.  