Greenstein, et al. v. 1st National Bank of Gadsden

Greenstein, et al. v. 1st National Bank of Gadsden. A ssumpsit. (Decided Dec. 17, 1908. 47 South. 1036.) Appeal and Error; Right of Review; Who Entitled to Appeal.— Where the record shows the judgment to be against the defendant partnership, the appeal should be taken in the partnership name and the individuals composing the firm may not prosecute an appeal therefrom. Appeal from Gadsden City Court. Heard before Hon. John H. Bisque. Action by the First National Bank of Gadsden against A. Greensteih and others, partners, etc. Judgment for plaintiff, and defendants appeal. Appeal dismissed. Alto Y. Lee, Jrv and James R. Foreman, for appellants. Counsel discuss the assignments of error relied on for a reversal, with citation of authority,, but do not discuss the point passed on. Boykin & Brindley and Hood & Murphee, for appellee. Counsel discuss motion to dismiss for failure to give security for costs, .and other matters hut do not discuss the point passed upon. [MAJORITY — McCLELLAN, J.] McCLELLAN, J. — As originally instituted the . action was against Greenstein, Markel & Co., and the complaint was amended by the addition of two counts (A and B) ; hut such amendment did not operate to change tl]£ party defendant. The posture of the'suit remained, as regards parties, a suit against the entity, and not against persons composing that entity. The judgment is in favor of the plaintiff and against the defendant. The adjudication for a recovery in favor of the plaintiff was against the defendant Greenstein, Markel & Co. The appeal, the certificate shows, was taken by the persons named as composing the company, and not by the company, the entity. No judgment was rendered against the individuals, as such, appealing, and, in consequence, no right of appeal inured to them; nor, of course, can they assign errors in the premises. —Johnson, Nesbit & Co. v. First Nat. Bank, 145 Ala. 378, 40 South. 78. See Burdeshaw v. Comer, 108 Ala. 617, 18 South. 556. The appeal is therefore dismissed. Tyson, O. J., and Dowdell and Anderson, JJ., concur. .