
    Pittman & Gwin v. The Planters’ Bank.
    Service on one partner is not notice to the-other members of the firm, either by common or statute law.
    An entry by the clerk that, “ this day came the parties by their attorneys, and the defendants withdraw the plea by them pleaded, and say they cannot gainsay the plaintiffs’ action,” was held not to be an appearance by the party not served with the writ, and that judgment against all the parties was erroneous.
    ERROR to the Hinds circuit court.
    This was an action of assumpsit instituted at the March term of the Hinds circuit court, 1835, by the Planters’ Bank against Pittman & Gwin, on a partnership note for 1000 dollars. The writ was executed on Pittman, but no service as to Gwin. Judgment was rendered against both defendants.
    Hutchinson, for plaintiff in error.
    This was an action of assumpsit brought by the President, Directors & Company of the Planters’Bank of Mississippi against • Pittman & Gwin as makers of a note for 1000 dollars. The declaration was filed under the’ statute with a view to judgment at the return term, and therefore, in fact, preceded the writ. By it the plaintiffs below elected to sue both partners. The writ issued against both, but was served only on Pittman, the return being silent as to G win. In the absence of any statute allowing a discontinuance as to a defendant in an action ex contractu the plaintiffs below were bound to obtain a personal service on Gwin by alias phiries, &c., or a constructive service by judicial attachment or perhaps outlawry. They took no one of these steps; but on the arrest of Pittman and the plea by him alone, they took a judgment as upon a waiver of plea byboth defendants against both. The substance of the error assigned is, that judgment was ’ rendered against one not summoned or arrested, and for whom no appearance had been entered or plea filed. It cannot be pre-sinned from the language of the entry of judgment “ This day came the parties by their attorneys, and the defendants withdraw the plea by them pleaded and say they cannot gainsay the plaintiffs’ action,” that there was either an appearance or plea by Gwin. That entry, as is known, was the act of the clerk, and so far as it did not conform to facts, as evidenced by the pleadings, it is to be viewed as an inaccuracy dr misprision. But it is contradicted by the preceding record. Who were the parties that came? Those that the pleadings and process showed were in court; the plaintiffs and the defendant Pittman, who had been arrested and had pleaded. What plea was waived? There was but one plea and that was by Pittman only. It was not the plea of the “defendants.” If there had in truth been a return of service on Gwin and a plea by him, a diminution of record should have been suggested and a full exemplification brought up upon certiorari. The fact was otherwise: and the whole record is before the court. A judgment has been rendered against a defendant without notice or opportunity of defence, and is it a difficult question to say whether such a judgment can be valid? Certainly not. Many such errors have occurred from the inadvertence of clerks in not examining into the pleadings and state of parties, or the inattention of the counsel in urging cases into judgment prematurely. Yet on those, whose faults have occasioned the error, let the consequences fall, not on the defendant who was not notified. It is a principle of universal law and of natural justice, that no one’s person shall be jeoparded or his estate or rights impaired without opportunity of defence and trial; and I need not refer to code, statute or book to show that it is a rule of the law of Mississippi. Doubtless the very point raised in this case has been decided in this court, and perhaps repeatedly, Circumstances, however, have prevented my access to the opinions delivered. In Alabama it was settled in five or six cases. The only reference now convenient for me to make is a case in New York. Richard v. Walton, 12 Johns. Rep. 434.
    Collins, for the defendants.
    This suit was instituted by the Bank against Pittman & Gwin, as partners, upon a note made by them, and was conducted in the circuit court of Plinds county, as stated in the brief presented by the counsel for the plaintiffs in error.
    Only two points arise for the consideration of this court in the investigation of this case; First, is notice to one partner considered notice to ano'ther, or all the partners, as the case may be? and, Secondly, if not notice to all, then how far does the error extend? does it extend to all, or only to the party defendant, not served, against whom judgment has been rendered?
    I presume the court will readily assent to the legal proposition, that the act of one partner will be binding upon and considered the act of all — further, it will not be denied, that for the purpose of taking depositions in cases where partners are concerned, notice to one is sufficient to bind all — then I think that the principle may be easily extended to the service of process from a court of law, and that service upon one is sufficient service upon all to entitle the plaintiff to judgment against all.
    All the decisions that I have been able to see touching the fact whether service upon one is good against all the partners, seem to be predicated upon legislative enactments of the particular state where the decisions have been made, leaving the question still open. The case referred to by the counsel for the plaintiffs in 12 Johns. Rep. 434, seems, from all that I can gather, to have been instituted against the defendants as joint obligors, and not as partners, which destroys the analogy between the case there referred to and the one before the court. I know of no statute of our state with regard to, or fixing the liabilities of partners, until the statute of 1836, which was passed after the execution of the note by the defendants below; and even that, I believe, could have no bearing upon this case in its present attitude.
    Should I be mistaken upon the first point, I contend, that though it may be error to take judgment against all the partners, when all have not been brought into court, the error only extends to the partners not brought in, and the judgment will be treated as sur-plusage as to them, and considered good and regular so far as the partner is concerned who has been served with the process. To that point I will direct the attention of the court to 2 Bibb, 390. I give the language of the authority. “ When process is served only on some of the defendants named in the writ, and judgment is taken against ‘ the defendants’ without naming them, and without any appearance of the defendants not served with process, the • judgment will be understood only against the party who .has been . served with process.” This authority is in point.
    Hutchinson, in reply.
    At common law each partner sued had to be summoned, arrested or outlawed; and it will require legislation to render the service on one obligatory on his copartner. The statute of Alabama so provided, and it has been found in consequence to be deservedly deprecated, having become a fruitful source of litigation in equity.
    It is held in Richards v. Walton, that a judgment invalid as. to one of a plurality is totally void. How far the case in 2 Bibb, 390, cited in contra, may have rested on the peculiar legislation of that state to modify the common law rule, I am. at this moment unadvised.
   Mr. Chief Justice ShaRkey

delivered the opinion of the court.

The defendants in error instituted suit against Pittman & Gwin on a note made by them as partners. The record shows that process was served upon Pittman, but not upon Gwin, although judgment is entered against both in the plural number. The plea is by Pittman alone, and there is an entry on the record, that “the defendants withdraw the plea by them pleaded;” yet we cannot take this as an appearance by Gwin: there is, therefore, nothing to show that he was in court, and if not a judgment against him, was irregular.

It is contended for defendants in error, that the service on one partner was service on the whole. It is not so by the common law, and I'know of no statutory provision making it so. It was, therefore, not such a service of process as would justify a judgment against Gwin; and although a judgment taken against Pittman alone might have been good, yet it is not good as against Gwin, and being joint it must be reversed. The case of Moore and Parker, 3 Littell, is directly in point. That was an action against two, and one only was served with process, but judgment was entered against both, and it was held irregular. There was also an entry in that case that “the parties came by attorney,” but this recital on the record was not deemed sufficient to amount to an appearance of the party not served with process.

By the sheriff’s return it appears that Pittman only was served with process, and the mere memorandum of the clerk being in the plural number, is not sufficient to constitute an appearance.

Judgment reversed and cause remanded.  