John Bollman Co. v. S. Bachman & Co.

Plaintiff on the fourth day of January, 1907, filed a complaint in an action for goods sold and delivered, against "S. Bachman Company." It was alleged in the complaint that "the defendant S. Bachman and Company was a copartnership," but no attempt was made in the original complaint to allege who comprised the copartnership. The prayer was for judgment against "the defendant." In other words, the action was brought under section 388 , Code of Civil Procedure, which provides that persons associated in business and transacting such business under a common name may be sued by such common name. Subsequently, and after the statute of limitations had run against the action, the plaintiff amended its complaint so as to make the title read: "The John Bollman Company, a corporation, Plaintiff, vs. S. Bachman Company, a copartnership, Simon Bachman and Arthur Bachman, copartners doing business under the firm name of S. Bachman Company, defendants," instead of, "The John Bollman Company, a corporation, Plaintiff, vs. S. Bachman Company, a copartnership, defendant." The amended complaint also contains appropriate allegations to charge Simon Bachman and Arthur Bachman, and the prayer is for…

The petition for a rehearing is denied; but in thus denying the petition it is proper to say that noth *594 ing in the former opinion should be construed as indicating our views as to whether or not the judgment entered against the copartnership may or may not be enforced against the individual property of the member of the copartnership served with the summons issued on the original complaint. As indicated in the original opinion, section 388, Code of Civil Procedure, as it existed when the action was brought, provided only that the judgment should bind the joint property of the associates, while the same section as amended before judgment was rendered provides that the judgment shall also bind the property of the member served with process. As no appeal was taken from the judgment against the copartnership, we do not consider it either necessary or proper to determine its scope and effect.

Plaintiff on the fourth day of January, 1907, filed a complaint in an action for goods sold and delivered, against “S. Bachman & Company.” It was alleged in the complaint that “the defendant S. Bachman and Company was a copartnership,” but no attempt was made in the original complaint to allege who comprised the copartnership. The prayer was for judgment against “the defendant.”

In other words, the action was brought under section 388, Code of Civil Procedure, which provides that persons associated in business and transacting such business under a common name may be sued by such common name.

Subsequently, and after the statute of limitations had run against the action, the plaintiff amended its complaint so as to make the title read: “The John Bollman Company, a corporation, Plaintiff, vs. S. Bachman & Company, a copartnership, Simon Bachman and Arthur Bachman, copartners doing business under the firm name of S. Bachman & Company, defendants,” instead of, “The John Bollman Company, a corporation, Plaintiff, vs. S. Bachman & Company, a copartnership, defendant.”

The amended complaint also contains appropriate allegations to charge Simon Bachman'and Arthur, Bachman, and the…