#### E. A. Sherburne v. Frank D. Hyde.

Opinion filed April 17, 1900

Rehearing denied June 20, 1900.

1. Practice—section 9 of Practice act, concerning scire facias, applies to partnership suits. Section 9 ‘of the Practice act, providing that where summons is served on one or more defendants, but not upon all, the plaintiff may proceed to trial and judgment against the defendants served and afterwards have a scire facias issued against those not served, applies to suits against partnerships. (Sandusky v. Sidwell, 173 Ill. 493, overruled in part.)

2. Same—scire facias provided for in section 9 is not an alias writ. The scire facias provided for in section 9 of the Practice act, while a second summons, is a summons of a special character, and does not come within the term “alias writ.”

3. Attachment—section 9 of Practice act applies though partners are named as garnishees in attachment. Where partners are named as garnishees in attachment but the writ is served on one, only, and returned “not found” as to the other, who is within the jurisdiction of the court, the plaintiff may proceed to judgment against the one served, and have a summons in the nature of a scire facias issued against the other to make him a party to the judgment.

Boggs, C. J., and Cartwright, J., dissenting.

Hyde v. Casey-Grimshaw Marble Co. 82 Ill. App. 83, reversed.

Appeal fro'm the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Francis Adams, Judge, presiding.

E. A. Sherburne, Joseph W. Moses, and William Catron Rigby, for appellant:

At common law, where several defendants were sued on a joint undertaking, the plaintiff was not permitted to take judgment against any until all were served with process, or until those who could not be served were proceeded against to outlawry. Our statute has substituted the return of non est inventus for that of outlawry, and *581authorizes judgment against defendants who are in court by the service of process. Tiffany v. Breese, 3 Scam. 499.

In actions on contracts against several, when all are served with process, the judgment must be against all or none, unless some of the defendants make a personal defense, as, infancy, lunacy, bankruptcy and the like. By statute, judgment may be taken against a part of the defendants who alone have been served with process. Felsenthal v. Durand, 86 Ill. 230.

When several defendants are sued, whether on a partnership or other obligation, and all the obligors or promisors are made defendants, and a part only are served and the process is returned not found as to the rest, the plaintiff may take judgment against the defendants who are before the court.

F. W. Becker, for appellee:

Failure to serve one partner invalidated the attachment and gave the lower court no jurisdiction of the res. This defect is incurable, as an alias attachment cannot issue, (Dennison v. Blumenthal, 37 Ill. App. 385; Pack v.Bank, 172 Ill. 192;) nor a scire facias, which is only an alias summons, (Sandusky v. Sidwell, 173 Ill. 493,) and is not issuable in case of a firm obligation.

Where debts are due from two or more persons jointly, as, for instance, in partnership, instead of jointly and severally, all must be served. 8 Am. & Eng. Ency. of Law, (1st ed.) 1166; Shinn on Attach, and Gar. sec. 608; Warner v. Perkins, 8 Cush. 518; Hoyt v. Robinson, 10 Gray, 371; Heith v. Pfeifle, 42 Mich. 31.

Mr. Justice Carter

delivered the opinion of the court:

The appellant, Sherburne, brought attachment in the superior court of Cook county against the Casey-Grimshaw Marble Company, a non-resident corporation, upon certain promissory notes and an open account which he *582held against that company, and in the attachment writ named William Grace and Prank D. Hyde, as partners under the firm name and style of Grace & Hyde, as garnishees. The writ was served on Hyde and returned not found as to Grace. The defendant to the attachment not appearing, after statutory notice judgment by default was entered against it. Hyde answered the interrogatories to Grace & Hyde, that his said firm was indebted to the marble company upwards of $1000, but that he was informed and believed that at the time of the service of the writ said indebtedness had been assigned to August R. Meyer. Meyer appeared and filed his interplea, to which the court sustained a demurrer and rendered judgment against Grace & Hyde, garnishees, on Hyde’s answer. This judgment was reversed by the Appellate Court because Grace had not been served, and the cause was remanded. (Grace v. Casey-Grimshaw Marble Co. 62 Ill. App. 149.) The cause having been re-docketed, the superior court rendered judgment against Hyde alone, as garnishee. On Hyde’s appeal this judgment was reversed by the Appellate Court without remanding the cause. The judgment being less than $1000 a certificate of importance was granted, and the cause is before ns on Sherburne’s appeal.

The question presented for decision is, whether or not it was error to render judgment against Hyde alone for the partnership debt of Grace & Hyde. Had Grace appeared to the action or been served with process, it is settled law that the judgment must have been against both or neither. (Kimmel v. Shultz, Breese, 169; Russell v. Hogan, 1 Scam. 552; Hoxey v. Country of Macoupin, 2 id. 36; Felsenthal v. Durand, 86 Ill. 230; Byers v. First Nat. Bank, 85 id. 423.) But as Grace did not appear, and, though within the jurisdiction and named in the writ, was not served, it is contended by appellant that it was proper practice to take judgment against Hyde alone, and have a summons in the nature of a scire facias issued against *583Grace to cause him to appear in said court and show cause why he should not be made a party to the judgment, as provided in section 9 of the Practice act, (Rev. Stat. p. 776,) which reads: “If a summons or capias is served on one or more, but not on all of the defendants, the plaintiff may proceed to trial and judgment against the defendant or defendants on whom the 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 with the first process, to cause him to appear in said court, and show, cause why he should not be made a party to such judgment; and upon such defendant being duly served with such process, the court shall hear aud determine the matter in the same manner as if such defendant had been originally summoned or brought into court, and such defendant shall also be allowed the benefit of any payment or satisfaction which may have been made on the judgment before recovered, and the judgment of the court against such defendant shall be that the plaintiff recover against such defendant, together with the defendant in the former judgment, the amount of this debt or damages, as the case may be.” Appellee contends, on the other hand, that that section applies only to obligations which are joint and several, where suit might be brought against one, only, and not to obligations of a co-partnership, and cites Sandusky v. Sidwell, 173 Ill. 493, where, in the language used by the court in the opinion, it was in substance so said.

Upon further consideration of the case at bar upon rehearing we have reached the conclusion that said section of the Practice act does apply to partnership contracts and obligations, as well as to other joint, or joint and several, contracts and obligations, and that what was said to the contrary in the -case cited should be so far qualified. But, as we there held, section 3 of chapter 76 of the Revised Statutes, declaring, “all joint obligations and covenants shall be taken and held to be *584joint and several obligations and covenants,” has no reference to contracts of a co-partnership. (Coates v. Preston, 105 Ill. 470.) In other States, by statute, 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 co-partnership must be joined. (Page v. Brant, 18 Ill. 37.) They are declared against as partners, and the statute confers no authority to sue and declare against one, only, as in case of other joint debtors. But it does not follow that section 9 of the Practice act, above quoted, does not apply to suits against appellants, who are partners. It does not follow that because the plaintiff cannot elect to sue one, only, of several partners who are jointly liable, but must sue all, that judgment may not be rendered, as this section provides, against one, or more than one, who are served, and the prescribed steps then taken to bring in and make the remaining members of the firm parties to the judgment. 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 so 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. But whether they are so made parties to the judgment or not, the judgment is valid because the statute authorizes it. So it is seen that the power of the court to render judgment against one or more joint debtors where all are sued, and thus to produce a severance if it becomes necessary, does not depend on the right of the plaintiff to elect to produce such severance himself, by bringing his suit against a part, only. The reasons, therefore, for holding that it could not have been the intention of the legislature, by section 3, to declare partnership liabilities to be joint and several, would not be sufficient to authorize the conclusion that section 9 was not intended to apply to defendants sued as partners, and the section itself contains *585nothing excluding- such defendants from its operation. “At the common law, where several defendants were sued upon a joint contract, the plaintiff was not entitled to judgment against any of them until all were served with process or until those not served were prosecuted to outlawry. * * * But to remedy the inconveniences of the common law practice,” the statute “has provided that a return of non est inventus as to a part of the defendants shall authorize the plaintiff to proceed to trial and judgment against those upon whom service has been had, and authorizes the issuing of a summons in the nature of a scire facias, to make the defendants not served parties to the judgment.” (Evans v. Gill, 25 Ill. 100; Davidson v. Bond, 12 id. 84.) In Felsenthal v. Durand, 86 Ill. 230, which was a suit against several defendants as partners, it was said: “By statute, judgment may be taken against a part of the defendants who alone have been served with process,” and we are of the opinion it should be so held, otherwise we would be compelled to hold, without sufficient warrant, that it was the intention of the legislature to exclude all defendants sued as partners from the operation of the statute, and as to them only to retain the common law practice of outlawry.

But the point is made that the case at bar was in attachment, and that Grace and Hyde were named as garnishees, and that the proceedings against them are controlled by the statutes relating to attachments and garnishments, and not by the Practice act, and Pack, Woods & Co. v. Savings Bank, 172 Ill. 192, is cited to support the contention that no second writ can issue against Grace. It was held in that case that the statute does not provide for the issuing of an alias writ of attachment, and it is urged here that another writ, if issued and served upon Grace, would necessarily be another garnishee process based upon the attachment, and would, upon the authority of the case cited, be unauthorized. But would a summons in the nature of a scire facias, if issued *586in this case under the statute, be an alias writ? We think not, in the sense the term is employed. Section 8 provides for an alias common law writ. But while the scire facias authorized by section 9 would be another summons, yet it is one of a special character, which the statute authorizes only where a part, but not all, of the defendants have been served and judgment has been rendered against those served, and which commands the defendants not served by the first writ to appear and show cause why they should not be made parties to the judgment rendered against their co-defendants. Clearly, it does not come within the term “an alias writ.” True, neither the Attachment nor the Garnishment act authorizes such a writ, yet section 26 of the former- provides that “the practice and pleadings in attachment suits, except as otherwise provided in this act, shall conform, as near as may be; to the practice and pleadings in other suits at law.” And while this section and the Practice act do not authorize an alias attachment writ, they do authorize a summons in the nature of a scire facias to make a defendant coming within their provisions, as Grace does in this case, a party to the judgment against his co-defendant. There is nothing in Kirk v. Elmer Dearth Agency, 171 Ill. 207, cited by counsel, which holds to the contrary. If, as there held, the Attachment act had made different provisions affecting the practice in question, it would control; but as it has not, the Practice act controls.

The judgment of the Appellate Court is reversed and the judgment of the superior court is affirmed.

Judgment reversed.

Boggs, C. J., and Cartwright, J., dissenting.