In the caption of the complaint in this action -the defendants are thus named and described:—

The averment in the complaint as to the relations of defendants to each other is as .follows:—

The complaint asks for judgment against “said defendants,”

The caption of the summons as regards defendants is in the same words as the caption of the complaint above quoted.

In the summons these words are used as to the defendants to whom it is directed and who are required to appear and answer: —

As to the requirement to appear and answer the language employed in the summons is: “You are hereby required :to appear in an action brought against you ..... and to .answer.” ....

The notification to the defendant in the summons is as follows:—

Service was made on Robinson, Knox, and Osborne only. Robinson made default and Knox and Osborne answered. The cause was tried and the court rendered judgment as follows:—

This appeal is prosecuted by all the defendants, and they con-tend that the judgment is erroneous in that it is rendered against -all the defendants, two of whom, the Elys, were not served, with a direction that the plaintiff have execution against the separate .property of the parties served, and the joint property of all the .defendants. .....

*146 No such judgment is authorized by section 414 of the Code of Civil Procedure, which provides that when the action is against two or more, defendants jointly or severally liable on a contract, and the summons is served on one or more but not on all of them, the plaintiff may proceed against the defendants served in the same manner as if they were the only defendants. The practice act formerly in force had a section somewhat similar to the section just above referred to. (See Pract. Act, § 32.) This section 32 in terms authorized such a judgment as was entered in this case. But no such provision is now found in the Code of Civil Procedure. It was probably omitted in consequence of what was said as to its constitutionality in the opinion of the court in Tay v. Hawley, 39 Cal. 93 .

But it is argued for the respondents (plaintiffs below), that the judgment is sustained by the provisions of section 388 of the Code of Civil Procedure. That section is as follows: —

We think it sufficient to say that the action was not instituted : under section 388. The clauses quoted .above. from the complaint and summons show no intent to proceed under this section. Individuals in the captions of both summons and complaint are named as defendants, and are described as doing business as partners under a firm name. All the parties are named. This is also true of two of the clauses quoted above. ■ -The individuals are required to appear and answer, they are notified that if they do not appear, judgment will be taken against them, and in the complaint judgment is asked against “ said defendants.” The same forms of expression as are herein employed are those ordinarily used in actions against the individual members of a partnership on a partnership contract. Such being the case, we see no reason why we should construe the action to be one brought under section 388. In an action brought under this section it *147 is not necessary to name all of the associates as defendants. In fact the association designated by its common name is the only defendant, and the judgment authorized is one binding only the joint property of the association. It will thus be seen that the judgment here rendered is not in accordance with either sections 388 or 414 of the Code of Civil Procedure. Under the former there can be no judgment against the separate property of any associate, and under the latter no judgment is allowed against the joint property at all.

"VYe are of opinion that this is an action against the individual partners doing business under the firm name of Knox & Osborne on partnership contracts, and in such case under section 414 of the Code of Civil Procedure, the plaintiffs can only proceed against the parties served.

The foregoing views dispose of the case and render it unnecessary to pass on the constitutional question discussed by counsel.

The plaintiffs are entitled to judgment against Bobinson, Knox, and Osborne who were served with process, but not against She Elys who were not served. The judgment should then be modified by striking therefrom the names of the Elys, allowing it to stand as against the served parties.

The cause is remanded to the court below with a direction to modify the judgment as above indicated.

Ordered accordingly.

Sharpstein, J., and Myrick, J., concurred.