
    Ellery et als. v. J. D. Dameron et als.
    Where the proper parties have not been oited the oase will be remanded.
    APPEAL from the Sixth District Court of New Orleans,
    
      Howell, J. Durant <& Hornor, for plaintiffs. George L. Bright, for defendants- and appellants.
   Hsiey, J.

The plaintiffs in this case have obtained the confirmation of a judgment by default, against J. D. Dameron and H. E, Bonneval, in solido, who (they represent in their petition) are members of the commercial firm of J. D. Dameron & Co. No judgment is prayed for against the firm, but the plaintiffs pray that the defendants, Dameron and Bomneval, be severally cited to answer their petition, and that, after due proceedings, thattheybeeondemnedin solido to pay them the sum claimed, etc.

J. D. Dameron & Co. have appealed from the said judgment.

Assuming that the defendants composed the partnership of J. D. Dameron & Co., there is no evidence whatever in the record to show that that partnership was a commercial one.

‘Bonneval was legally cited; but no process was served on Dameron, either in person or at his domicile, as required by law ; and of this he very properly complains.

Bonneval admits his liability as a joint obligor with Dameron, and claims that the judgment against him should be reduced one-half. It would, however, we think, be more regular to have both parties before the Court; if the obligation be really a joint one, in accordance with Art. 2080 La. Code, and 3 E. 26, 140; 6 E. 351; 7 E. 181; 10 E. 430; which do not conflict with Brown v. Robinson & Hassam, 6 A. 423, and the matter of O’Flaherty, 7 A. 640; and if the obligation be a solidary one, the ends of justice will be better subserved by remanding the case for legal service of citation of the defendant, Dameron, and for other further proceedings according to law.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Court be avoided, annulled and reversed, and that the case be remanded to the lower Court, for service of process on Dameron, and for other further proceedings according to law. 906, C. P.

It is further ordered, thatthe plaintiffs and appellees, pay costs of appeal.

Hovranii, J., recused.  