On Rehearing.
Provosty, J.This is a suit to revive and make executory in the State a judgment rendered in the State of Mississippi against Eldridge, Morris & Company, once a commercial firm composed of W. O. Eldridge, Isaac Morris and Charley Eldridge. The judgment is not sought to be revived as against Isaac Morris, and it is now finally decided to have been void as against Charley Morris for want of citation; and the question is whether, for the same cause, it was not void as against W. O. Eldridge also.
He was not personally cited, nor was he cited as a member of the firm of Eldridge, Morris & Co. The only citation issued was against the firm of Eldridge & Morris. How this citation was served, whether by handing to W. O. Eldridge, or to his partner, or by being left at the place of business of the firm, and if served in either of the latter forms, whether W. O. Eldridge ever had any personal knowledge of it, does not appear by the record.
The history of the matter is, as follows: The debt was created by the firm of Eldridge & Morris. Thereafter Charley Eldridge was admitted as a member and the firm became Eldridge, Morris & Co. The suit was begun by affidavit for attachment, the petition being filed afterwards. In the affidavit the debt is stated to be due by Eldridge & Morris; and the prayer is that the property of Eldridge & Morris be seized, and that Eldridge & Morris be cited. The names of the partners are not given, nor is there any prayer for the citation of the partners individually. In the petition the allegations are, as follows: That the debt is due by the firm of Eldridge, Morris & Co., composed of W. O. Eldridge, Isaac Morris and Charley Eldridge; that the debt was created by the firm of Eldridge & Morris, and that Charley Morris was afterwards admitted as a partner, and became bound for the debt in solido with his partners; and the prayer is, S3 follows: “Wherefore plaintiffs sue and demand judgment for said sum, interest and costs.” A store with contents and a steam cotton gin and other property was seized, but whether the property belonged *320to Eldridge & Morris, or to Eldridge, Morris & Go., the record does not show; although the inference would be that it belonged to Eldridge & Morris and had passed to Eldridge, Morris & Oo. on the admission of Charley Eldridge into the firm. The property seized was sold by consent of parties, but who are the defendants who thus consented, whether Eldridge & Morris, or Eldridge, Morris & Co., does not appear. None of the defendants made appearance in the suit, the judgment going by default. In the body of the judgment the defendants are not named, but are designated merely as “the defendants;” their identification being left to be inferred from the heading of the document, which is as follows: “H. & C. Newman vs. Eldridge, Morris & Co.”
Thus it appears that one firm, Eldridge & Morris, was cited; and another firm, Eldridge, Morris & Co., was condemned. The judgment therefore was rendered against a' firm not cited. It was, in consequence, null and void.
That W. O. Eldridge was a member of both firms, and that both firms owed the debt, makes no difference. The question is not one of indebtedness, vel non, but of compliance, vel non, with the forms of law for bringing a defendant into court. Had the plaintiffs cited W. O. Eldridge personally the case might be different; or even if ir were shown that the process addressed to his firm had been' served personally on him (Montague vs. Weill & Bro., 30 Ann. 54); but, non cornial, that he was ever cited, except fictively, by or through the citation on the firm, or that he ever had personal notice of the suit. The 'firm was a legal entity, entirely separate and distinct from its. members; and the two firms, though one had grown out of the other and had in its composition two members, or ex-members, of the other, were entirely distinct and separate legal entities, or persons. (Abat & Generes vs. Penny, 19 Ann. 290; Paradise & Bro vs. Gerson, 32 Ann. 532; Succession of Pilcher, 39 Ann. 362.) A member of a firm cited fictively by the citation of his firm is not, so to speak, personally in court, but only fictively, as a member of the cited firm. He is in court only as he has been cited, that is, fictively, as a legal effect of his membership. Such a citation does not bring him personally into court, nor for all purposes, but only as a component part of the firm, and solely and exclusively for the purpose of answering for the acts of the firm. If it is sought to enforce against him any obligations except those flowing as a legal effect of his membership of the cited *321firm, he must be personally cited. If it is alleged that A owes a debt in solido with the firm of A B C of which he is a member, and the firm alone is cited, not the individual members, and on the trial it develops that the firm does not owe the debt, but that A alone owes it; it will-not be possible to render judgment against A, for he will not have been cited. Non constat that he will have had actual notice of the suit, or that if he had had, he would not have been able to exonerate himself from the demand.
The separateness of a firm from the members composing it, is matter of commercial law and of well nigh universal jurisprudence, and we assume that iin Mississippi, as in Louisiana, a citation addressed to the firm and returned as having been served, will be considered as having cited the firm alone, and not the individuals composing the firm, except as these members can be made answerable by and through the firm.
■Counsel for plaintiff says that: “The attachment affidavit alleges that the firm of Eldridge & Morris is composed of W. O. Eldridge and Isaac Morris.” This is a mistake, the names of the partners are not given in the affidavit, nor in the writ, nor in the sheriff’s return. In every instance nothing more is given than the name of the firm— Eldridge & Morris. True the firm of Eldridge & Morris is spoken of as “the defendants,” but the firm alone being named, and the individuals not being named, this term must be understood as referring to the firip. The presumption, omnia rite acta, cannot help the situation, when plainly the court has condemned one firm on a citation issued to another firm.
It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be set aside in so far as it condemns W. O. Eldridge, and that the suit of the plaintiffs be dismissed at their cost in both courts.