
    Levystein v. Gerson, Seligman & Co.
    
      BUI to Declare d Motrgage Fraudulent and Void.
    
    (Decided July th, 1906.
    41 So. Rep. 774.)
    
      Amendment; Partnership; Suit Against Firm; Bill; Parties Defendant. — The bill was exhibited against a partnership composed of three named persons, non-residents, service was had on one of the named partners; complainant offered to amend by converting the suit into one against the partners individually, and to strike the names of those not served. I-Ield, the amend-mend should have been allowed, even conceding that Section 40, Code 1S96, has no application to suits in eqiuty.
    Appeal from Montgomery City Court.
    Heard before Hon. A. D. Sayre.
    This was a bill filed by H. Levystein as trustee against the firm of Gerson, Seligman ae Co., seeking to have a mortgag'e declared fraudulent and void. The facts necessary to an understanding of the opinion sufficiently appear therein.
    Martin & Martin, for appellants.
    While the demand sought to be enforced is one against the partnership' it is also a liability against each of the members composing the firm. — Waldron v. Simmons, 28 Ala. 629; Cox v. Harris, 48 Ala. 538; Sims v. Jacobson, 51 Ala. 186; Bosev. Gunn, 79 Ala. 411. The plaintiff may proceed against cue or more of the parties thereto where he has a joint demand. — Sec. 670, Code 1896; Teague v. Corbett, 57 Ala. 229; Moore v. Armstrong, 9 Port. 697.
    Having come into the state voluntarily service upon him subjected him to the jurisdiction of the court just as if he was a resident. — Smith v. Gibson, 83 Ala. 284; E. T. V. & G. R. R. Co. v. Kennedy, 83 Ala. 462; Steen v. Simdley, 126 Ala. 616; Lee v. Baird, 139 Ala. 52Q;OTer v. Gallagher, 93 U. S. 199.
    The complainant clearly had the right to amend his bill and proceed against Seligman alone. — Secs. 706, 704 and 3331; Collins r. Slix, 96 Ala. 338; Rapier v. Gulf City Co. 69 Ala. 476; King v. Avery, 37 Al-a. 1*69; Moore v. Airis, 54 Ala. 356;’Pitts v. Pou-leclge, 56 Ala. 147; Sims v. Jacobson, .51 Ala. 187; McCaskey v. Pollock, 82 Ala. 174; Williams v. Boivdo-in, 68 Ala. 126; Rmenburg v. Glafflin Go\ 95 Ala. 249. A defect curable by amendment is no more than-an irregularity of which the defendant cannot take advantage. — McLean v. Wright, 137 Ala. 644.
    Steiner, C-rum & Weil, for appellee.
    The attachment issued in this case was void. — Secs. 766, 762, 771, 772, Code 1896; McLienzio v. Bentley, 30 Ala. 139; Dollins v. Lindsey, 89 Ala. 217; Ware v. Season good. 92 Ala. 152. The situs of the debt sought to be reached by the garnishment was the state of Ohio where they were payable and no jurisdiction was acquired by the levy of these garnislimenl s. — L. & K. R. R. Go-, v. Mash. 118 Ala. 477; L. & M. R. R. Co. v. Steiner, Lobman, 128-Ala. 353. Sec. 40 of the Code of 1896, has no application to suits in equity against partnerships in the firm name. — Opelika v. Daniel, 59 Ala. 211. Admitting that service was had upon one of the members of appellee’s firm, the other members are as much interested in the partnership property as he and are entitled to their day in court. — Hall v. tanning, 91 U. S. 271; Grover v. Radcliffe, 137 IT. S. 295; Wood v. Watkinson, 44 Am. Dee. 562 and note.
    The decree pro confesso was properly set aside. Service made on him originally for the purpose of bringing the partnership into court could not bring him in originally. — While, v. Johnson, 50 Am. St. Bep. 379 and note. No notice was given of the allowance of the amendment nor was-notice directed to he given by the court on account of the non-residency of the firm. — Alston v. Alston, 34 Ala. 15; Holly v. Bass, 63 Ala. 387; Me Clcnny r. Ward, 80 - Ala. 343. To have allowed the amendment proposed and the substitution of Seligman individually would have made a change of cause of action and .of parties. — Williams et als. v. Hurley et als., 135 Ala. 3.19; Steiner Bros. v. Stewart, 134 Ala. 568; Vinegar Bend L. Co. v. Chicago T. cG T. Co., 131 Ala. 141.
   TYSON, J.

The bill in this cause is exhibited against a partnership composed of three designated persons, nonresidents of Alabama: service of summons being made upon Emil C. Seligman, one of the named partners. After a decree overruling a motion to- quash the summons made by the party served, the complainant proposed to file an amendment converting the suit into one against the partners individually and to further strike out the names of the partners not served, so as to' make it a suit against Emil C. Seligman alone. The court refused to allow the amendment, and the question is error vel non in this lulling.

We think, on principle and authority, the amendment should have been allowed. Conceding that section 40 of the Code of 1896, allowing suits against partnerships by their partnership name without mentioning the names of persons composing the firm,, has no application to suits in equity (City of Opelika v. Daniel, 59 Ala. 211), this cause would be in a better situation for amendment than were the cases of McCaskey v. Pollock, 82 Ala. 174, 2 South. 674, and Sims v. Jacobson, 51 Ala. 186. In the latter case the action was brought in a firm name without any mention of individuals, and the plaintiff proposed to amend so as to evoke the action by individuals against individuals by inserting the names of the members of the plaintiff and defendant firms..The trial court refused, to allow the amendment, and on appeal this court held the amendment allowable, saying; “The .amendment proposed’no change of parties and no change of the cause of action originally averred. A debt due the partnership of Sims, Harrison & Co. from the partnership of Jacobson & Co. must have been proved under the original, and must be proved under the amended, complaint. The partnership ánd their members were substantially before the court on the complaint as originally framed. A new party has not been introduced, which is unauthorized by our statute of amendments; but the designation of the respective parties, plaintiff and defendant, is only made more specific and certain. The amendment was proper, was the right of the plaintiff, and the court erred in refusing it.” In the case of McCaskey v. Pollock, supra, a suit against the individual's of a firm was allowed by amendment to be converted into a suit against the partnership as such. The authority and reasoning of these two cases make it clear that the court erred in not allowing the proposed amendment in this case.. .

It is of no moment that the summons and the return of the sheriff thereon are not shown in the record, as it otherwise sufficiently appears that service was made on Emil C. Seligman, the member of the firm proposed by the amendment to be retained as the sole defendant. As the court dismissed the bill preliminarily for the want of parties defendant, we deem it unnecessary and improper to rule on other questions, which could arise only subsequently to the establishment of the suit in court.

Reversed and remanded.

Weakley, C. J., and Simpson and Anderson, JJ., concur.  