JAMES REID & CO. vs. McLEOD

JAMES REID & CO. vs. McLEOD. 1. When process of garnishment is sued out against a firm, and judgments nisi and final are rendered against them by default, and the names of the partners composing the firm no where appear in the proceedings against them-, the judgment will be reversed, and judgment rendered in the Appellate Court quashing the proceedings. 2. It is not necessary in such ease that the defendant should plead the defect zn abatement. Error to tbe Circuit Court of Mobile. Tried before tbe Hon. John Bragg. Daniel McLeod, tbe defendant in error, having obtained a judgment against one John Ashby, sued out a writ of garnishment against “tbe firm of James Reid & Co.” as tbe debtor of said Ashby. Tbe garnishees failed to appear, and judgment nisi was rendered against them, which was aftdrwards made final. The affidavit of the plaintiff, the writ of garnishment, and all the subsequent proceedings describe the garnishees as “the firm of James Reid & Co.but the names of the partners composing the firm no where appear in the record. John T. Taylor, for plaintiff in error, cited 8 Term Rep. '508; 1 Chitty’s PI. 255; 5 Halst. 295; 2 Munf. 849; 8 Caine’s Rep. 170; 1 Penn. 75; ib. 137. No counsel appeared for the' defendant. [MAJORITY — CHILTON, J.-] CHILTON, J.- 'The pleadings in every suit shoud set forth the names of the parties, both plaintiff and defendant, with such certainty as to enable the court to determine in whose favor and against whom to render judgment. This is an elementary rule, the observance of which is indispensable in the proper administration of the law. Mr. Chitty in his work on Pleading (vol. 1 p. 256) says: “It must.be stated with certainty who are the parties to the suit, and therefore a declaration by or against O. D. & Company, not being a corporation, is insufficient.” The same principle is substantially asserted in 8 Term Rep. 508; Tomlinson v. Burke, 5 Hals. Rep. 295; Bently v. Smith, 8 Caine’s Rep. 170; and Scott v. Dunlap & Co., 2 Munf. Rep. 349. In the case before us, the whole proceeding and judgment appear to be against a firm name, while the parties composing it are no where disclosed by the record. Such uncertain, vague proceeding cannot be sustained, and ought not to be favored. Let the judgment be reversed, and judgment here rendered quashing the proceedings, so that the defendant in error, if he see proper, may sue out process of garnishment against the person or persons composing the firm, or negotiating in the .name and style of James Beid & Co. We would observe tbat this is not a ease where tbe defendant is required to put in bis plea in abatement; for it would be absurd to bold tbat a defendant must plead wbat bis adversary already admits upon tbe record. See Coll, on Part. §§ 717 and 718. Let judgment be entered againt tbe defendant in error for tbe cost of tbis court and of tbe court below. Judgment accordingly.