Tabler, Crudup & Co. v. Mitchell
Tabler, Crudup & Co. v. Mitchell
Opinion of the Court
delivered the opinion of the court.
The objection that the publication for the non-resident defendants described them as partners under the firm-name of Crudup & Co. instead of Tabler, Crudup & Co. cannot prevail. The suit is against the partners who composed the firm, and the names of the members, their place of residence, and post-office- are correctly stated in the publication made. This was sufficient to notify them of the pendency of the suit against them and to bind the property attached. The averment in the declaration that the defendants were indebted to the plaintiff under a contract made by them as partners was but the equivalent of averring that the obligation was the joint and several obligation of the defendants, and by their default in traversing the allegation they admitted its truth for all the purposes of this suit.
The. defendants cannot complain of any error which exists, if there be any, in the judgment against the garnishee, who does not complain. Code of 1880, § 1440.
The judgment against the defendants, though in form a personal one, will not support an execution against their general estate. Its operation is by the statute expressly limited to the property attached. Code of 1880, § 2467.
The judgment is affirmed.
Reference
- Full Case Name
- Tabler, Crudup & Co. v. Thales A. Mitchell
- Cited By
- 1 case
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- Published
- Syllabus
- 1. Attachment. Publication. Notice correct as to individuáis, but incorrect as to firm. Where, in a suit in attachment against individual partners as composing a specified firm, the proof of publication to them as non-residents shows that a notice directed to the defendants individually was duly published, and that a copy thereof was mailed to each of them at his post-office, such notification is sufficient, though the notice misstate the firm name of the defendants. 2. Pleading. Declaration. Joint and several obligation of partners averred. Admission. The averment in a declaration that the defendants are indebted to the plaintiffs as partners is equivalent to averring a joint and several obligation of the defendants, and the failure of the latter to traverse such allegation admits its truth. 3. Attachment. Judgment against garnishee. Defendant complaining thereof. Under § 1440 of the Code of 1880, a defendant in a judgment in attachment has no right to complain in this court of errors in a judgment against a garnishee in such suit who does not himself appeal. 4. Same. Personal judgment against defendant. Effect thereof. Although a judgment by default against a non-resident defendant in attachment be personal in form, it cannot affect any of his property except that attached and condemned. Section 2467, Code 1880.