#### Alice G. Fleming, Trustee, v. Henry C. Ross.

Gen. No. 12,337.

1. Partnership—how suit against, must be brought. In this-State all partners to a partnership obligation should be joined.

2. Partnership—when judgment against co-partner discharged. Where the holder of a partnership obligation sues and recovers judgment against one of several co-partners, he thereby discharges the co-partners unsued from such obligation, notwithstanding they may be non-residents of the State.

Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the March term, 1905.

Affirmed.

Opinion filed March 15, 1906.

Statement by the Court. December 2, 1901, appellant brought an action in assumpsit against Henry O. Ross, Alexander H. Seelye and D. Flanner, but obtained service upon Ross only. The declaration counted upon two promissory notes executed December 27, 1890, at Wausau, Wisconsin, by the three defendants by the name of Flanner, Seelye & Ross, payable at Wausau to the order of P. B. Champagne; one for the sum of $4,332.33, due in one year from date, and the other for the sum of $4,332.32, in two-years from date, each bearing interest at the rate of 8 per cent, per annum. After various pleas, including the general issue, were filed, the declaration was amended. Thereafter and on October 13, 1902, Ross filed an additional plea alleging that the notes declared on in the declaration were given for a partnership indebtedness of the then firm of Flanner, Seelye & Ross, and that- said partnership was composed of the defendants herein, D. Flanner, Alexander H. Seelye and Henry O. Ross, ánd that each of the notes was signed in thé firm name of Flanner, Seelye ■& Ross, and not in the individual names of the members of the firm, and that after the giving of said notes, the plaintiff, under *266the name and style of Alice G. Fleming, trustee, impleaded the said defendant, Alexander H. Seelye, in the Circuit Court of Cook county, Illinois, in the October, 1895, term of said court, in the year 1895, in a certain plea of trespass on the case on promises, to the damage of the plaintiff of $10,000, for not performing the very same promises in said declaration mentioned, and that such proceedings were thereupon had, that thereafter, at the November, 1895, term of said court, by the consideration and judgment of said court, the plaintiff, recovered against the defendant Seelye, the sum of $8,061.31 damages as well as costs of the plaintiff in that behalf, whereof the said Seelye was convicted, as hy the record thereof still remaining in said court will more fully appear, and that said judgment remains in full force and effect, as the defendant was ready to verify by the record.

To this plea appellant replied: That the said defendant, Henry O. Ross, and the defendant, D. Flanner, at the time of the commencement of said action in said additional plea mentioned, and at all times thereafter to and including the time of the rendition of the judgment in said plea mentioned, were not residents or inhabitants of or domiciled in the State of Illinois, or in the county of Cook within said State, but during all of said time the said defendant, Ross, was a resident and inhabitant and domiciled in the State of California, and was not during said time, or any part thereof, within the jurisdiction of the Circuit Court of Cook ■county, Illinois, being the court in which the judgment in said plea mentioned was rendered, or subject to service of process issuing therefrom, and that said defendant, Ross, became a resident and inhabitant of said county of Cook in said State, and domiciled therein, after the date of the rendition of said judgment in said plea mentioned, and not before, and that the judgment in said plea mentioned is wholly unpaid and unsatisfied.

To this replication Ross filed a general demurrer.

January 7, 1905, a judgment order, reading as follows, was entered:

*267“This cause being called for trial, come the parties to this suit, by their attorneys respectively, and said cause having heretofore, on the stipulation of the parties herein, been submitted to the court for trial without a jury, the ■court now hears all the evidence, oral and documentary, adduced by the respective parties upon the issues joined by the pleadings, and it appearing to the court that the court heretofore, to-wit, on the 25th day of ¡November, 1904, sustained the general demurrer filed by the defendant, Henry 'C. ¡Ross, to the first replication of the plaintiff to the first additional plea of the defendant, Henry C. Ross, filed October 13, 1902, to the declaration as amended herein; and that the plaintiff on said date elected to stand by said first replication;

“And the court now having heard the arguments of counsel, and being fully advised in the premises, finds that said first additional plea of the defendant, Henry O. Ross, filed October 13, 1902, to the declaration as amended herein, and the judgment therein set forth, constitutes a bar to the cause of action of the plaintiff set out in said declaration as amended.

“Therefore, it is considered by the court that the plaintiff take nothing by her said action, and that the defendant, Henry O. Ross, go hence without day and do have recovery of and from the plaintiff, his costs and charges in this behalf expended, and have execution therefor.”

This appeal was then perfected.

Moses, Rosehtiial & ¡Kehhedy, for appellant.

Arthur Humphrey, for appellee.

Mr. Justice Ball

delivered the option of the.court.

Appellant says: “The sole question, therefore, presented by this record for review is the propriety of the action of the trial court in sustaining1 the general demurrer of appellee to the first replication of appellant to the first additional plea of appellee to the declaration as amended, and its action, in pursuance thereof, in rendering judgment in favor of appellee and against appellant?”

*268Appellee presents the issue in the following language r “The question now before this court is," does the judgment obtained against Seelye alone, in the suit where he alone was made party defendant, constitute in law a bar to a second recovery upon the same cause of action in a suit' against all three partners, or does the fact that Eoss was. not a resident of the State of Illinois prevent the application of the well known rule that a former recovery against one of joint obligors constitutes a bar to a recovery against the other joint obligors ?”

Section 3, chapter 76, E. S. Hurd, declaring joint obligations to be joint and several, does not apply to partnership obligations. In Sherburne v. Hyde, 185 Ill., 580, the Supreme Court say at page 583: “But as we there-held (Sandusky v. Sidwell, 173 Ill., 493), section 3 of chapter 76 of the Eevised Statutes, declaring ‘all joint obligations and covenants shall he taken and held to he joint and several obligations and covenants,’ has no reference to contracts of a copartnership. (Coates v. Preston, 105 Ill., 470.) In other States, by statutes, suits may be brought against one of several partners on a partnership contract. But not so-in this State. Here all ostensible members of the copartnership must be joined. (Page v. Brant, 18 Ill., 37.)”

At common law in an action brought upon a joint contract, all of the joint obligors must he made defendants,, and as to those defendants not served, the plaintiff is obliged to outlaw them before he is permitted to proceed against those who are served. It was found that in the United States, under this rule, joint obligors, by residing in different States, could practically prevent any recovery upon their joint contracts. To remedy this defect the legislature as early as 1845 enacted what is now section 9 of the-Practice Act, which reads: “If a summons or capias is. served on one or more, but not on all the defendants, the-plaintiff may proceed to trial and judgment against the defendant or defendants on whom process is served, and the plaintiff may, at any time afterwards, have a summons, in the nature of scire facias, against the defendant not served *269with the first process, to cause him to appear iu said court and show cause why he should not be made a party to .such judgment,” etc. In no other way has the common law rule been, changed in this State. “A plaintiff cannot, in any case, bring his action against more than one and less than all of his joint debtors, but under this statute he may .sue all, whether partners or not, and take judgment against as many as are served or who appear, and the rest may be made parties to the judgment by summons in the nature of scire facias.” Sherburne v. Hyde, 185 Ill., 584.

In this case appellee in bringing her action against Seelye alone followed neither the common law rule nor the procedure laid down in said section 9. By taking judgment in that action she merged the joint contracts upon which she sued in the judgment, and thereby precluded herself from afterwards enforcing the same contracts against appellee.

But it is said that where joint obligors reside part in the State and part outside of the State in which suit is brought, to prevent a failure of justice and from necessity, it is permissible to proceed against those residing or found in the State without affecting the liability of the non-resident and non-served joint obligors (Yoho v. McGovern, 42 Ohio St., 16); and that under this exception, or rule, appellee is liable in the present action. In this State the reason for this practice is wanting, and therefore such practice is not in force with us. When appellant sued Seelye alone she had an equal right to have sued all of the copartners; but she elected not to do so, and is bound to accept the consequences flowing from her election. These conclusions are supported by Wann v. McNulty, 2 Gilm., 359; Davidson v. Bond, 12 Ill., 85; Thompson v. Emmert, 15 Ill., 416; Evans v. Gill, 25 Ill., 116; Travellers Ins. Co. v. Mayo, 170 Ill., 501; Sherburne v. Hyde, 185 Ill., 585.

The judgment of the Circuit Court is affirmed.

Affirmed.