Goetter, Weil & Co. v. Head & Co.

Goetter, Weil & Co. v. Head & Co. Action against Partnership, on Promissory Note. 1. When sworn plea is necessary. — In an action against two or more persons as late partners, founded on a promissory note executed in the name of the partnership, the fact of partnership can not he controverted without a sworn plea (Code, §§ 3035-36), denying the execution of the note. Apeeal from the Circuit Court of Pike. Tried before the Hon. IT. D. Clayton. This action was brought by Goetter, Weil & Co., suing as partners, against J. M. Head, Chabber Head, S. A. Williams, and DeKalb Williams, “late partners under the firm name and style of J. M. Head & Co.; ” was founded on a promissory note for $134.16, signed by said J. M. Head & Co. in the partnership name, dated November 7th, 1878, and payable sixty days after date, to the order of Goetter, Weil & Co., at the banking-house of Josiah Morris & Co. in Montgomery; and was commenced on the 26th February, 1879. The judgment entry only states that, “ by reason of the ruling of the court, the plaintiffs took a non-suit; ” but the bill of exceptions recites that, “ on the trial, the following proceedings were had: Defendants pleaded, in short by consent, along with the general issue, that no partnership existed between the defendants under the name of J. M. Head & Co.; but said plea was not sworn to. Plaintiffs demurred to said.plea, in short by consent, and moved to strike it from the files, because it was not sworn to. The court overruled said démurrer, and refused to strike • said plea from the files; holding that the existence of the partnership could be denied without a sworn plea, and that the burden, under the general issue, would be on the plaintiffs to establish the copartnership.” The plaintiffs excepted to this ruling, and they now assign it as error. Wm. H. Parks, for appellants. M. N. Carlisle, contra. [MAJORITY — STONE, J.] STONE, J. The Circuit Court erred in allowing the defense relied on in this case to be made, without a sworn plea denying the execution of the note. — Fowlkes v. Baldwin, 2 Ala. 705; Code of 1876, §§ 3035-6. Reversed and remanded.