delivered the opinion of the court.
The plaintiff, in his own right, and that of his wife, alleges, that he is the owner of sixty shares of stock of the Architect Company, upon which forty dollars per share have been paid, making together the sum of twenty-four hundred dollars; that the said company, being now in liquidation, has been amicably requested by him to pay said sum, with all dividends accruing thereon, but has refused to do so; that they have illegally confiscated the said shares and dividends, and appropriated them to their own use. He prays judgment for twenty-four hundred dollars, besides-dividends and interest.
The defendants having failed to appear, a judgment by default was taken against them, and, after the usual delays, made final, and they appealed.
nr j- • • . -ii ,. , We are of opinion that they are entitled to relief, and that the judgment of the District Court must be reversed, Partners in a ioint stock company have no action against it J . as such, except one in settlement of accounts and partition, and it can only be brought after the association is dissolved, which is not expressly alleged to be the case in this instance, If the company have wrongfully confiscated the plaintiff’s stock, he has an action to compel them to reinstate him in his rights; but those rights are merely those of a partner, and his stock will remain with the rest, subject to the debts and losses of the company until its dissolution and the final settlement of its accounts.
Considering, however, that the rights of the parties can , . , . . , be definitely settled, in this suit, by permitting them to amend their pleadings, we think that justice will be furthered by remanding the case.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; the judgment by default set aside, and the case remanded to the District Court, to be proceeded in according to .law, with leave to the defendants to answer, and to both parties to amend; the plaintiff and appellee paying the costs' of this appeal.