Marienthal v. Amburgh

delivered the opinion of the court:

It is alleged that the court erred in,making the order of substitution. It is unnessary to decide how far the authority to permit amendments justifies the substitution of a new party, or whether the change made in this case can be so called, for we are of opinion that the order does not extend beyond a permission or leave to make a substitution, that it does not itself make the substitution, and that it could only become effectual by proper amendments of the pleadings, and the service of process on the individual partners, and this is indeed all that it seems to have designed.

There are but two ways of bringing a defendant into court, a voluntary appearance, or the service of process. While the court knew by the pleadings that a firm existed in Ohio by the name of Marienthal, Lehman & Co., they had no judicial knowledge that Israel Marienthal, G. Lehman, and Leopold Block composed that firm. Before that could be known to the court, there must have been a petition, charging them as partners, process served, and a day in court given them to admit or deny their liability.

The very act under which this suit was brought provides for the enforcement of a judgment, where the money can not be made by execution against the firm, by bill in chancery and issuing process against “ such persons as may appear to have been members of such firm.” Swan’s Statutes, 706.

We are, therefore, of opinion that the court erred at special term in proceeding to try the cause and render judgment before the plaintiffs had amended their petition' and served process upon the individual partners.

*588The motion for a new trial made by Mr. Abraham, attorney for the original defendants, was no waiver of the error. It was filed in the name of the firm, who still legally remained the defendants, the substitution not having been made complete, and by leave of the court was subsequently withdrawn.

Judgment reversed and cause remanded for further proceedings.

Judgment reversed.