
    DAVIDSON & BRADY vs. STREET & FERGUSON.
    [ACTION iron -OSE AND OCCUPATION OP LAND.]
    1. Conflict between judgment entry and bill of exceptions. — Where there is a conflict Between the judgment entry and the hill of exceptions, the latter must control the former.
    
      2. Service of writ on partners. — Where the summons describes the two defendants as late partners, but the complaint contains no such description or averment; and the summons is executed on but one of them, who alone appears and pleads, the rendition of judgment against both is unauthorized .
    Appeal from the Circuit Court of Dallas.
    Tried before the Hon. E. W. Pettus.
    John T. MORGAN, for appellant.
    Ym. M. Byrd, contra.
    
   STONE, J.

The complaint in this case describes an account due from “W. Fayette Davidson and Jules Brady,” without styling them as partners. The summons describes them as “W. Fayette Davidson and Jules Brady, late partners under the firm name of Davidson & Brady.” The sheriff returned the summons executed on Brady, and Davidson not found. The bill of exceptions, which must control the judgment entry, (see Vincent v. Rodgers, 30 Ala. 471,) recites that Davidson did not appear. Brady alone pleaded. Under this state of facts, the court was not authorized to render judgment against Davidson. — Code, § 2142; Childress v. Taylor, at June term, 1858, (33 Ala. 185.)

It is not likely that the other questions will be again presented before us, in the form in which they appear in this record. Hence we forbear an expression of opinion on them.

Judgment of the circuit court reversed, and cause remanded.  