(After stating the foregoing facts.)
1. At the appearance term the plaintiffs in error demurred generally and specially to the petition. To demur generally to¡ a petition as presenting no cause of action is to plead to the merits of the ease. Appearance and pleading to the merits amount to a waiver of process and service, and by demurring generally these particular defendants were properly before the court. They could not invoke the judgment of the court upon the sufficiency of the petition, unless they were to be hound by such judgment. The court very properly refused to dismiss the case because the plaintiffs in error had not been served with process. Lyons v. Planters Bank, 86 Ga. 485 (12 S. E. 882, 12 L. R. A. 155); Dykes v. Jones, 129 Ga. 99 (58 S. E. 645).
2. The two defendants residing in the county where the..suit was brought were Wade B. Shrivall and Mrs, Emmett. Shrivall was only a nominal party, and was never served. The plaintiffs in error insist that Mrs. Emmett was not a party to the suit,,.either,
Our attention is called to the cases of Seisel v. Wells, 99 Ga. 159 (25 S. E. 266), and Clayton v. Farrar Lumber Co., 119 Ga. 37 (45 S. E. 723), as maintaining a contrary view. In the first-cited case a petition was filed against several defendants, but •process was prayed against only two. The clerk attached process against all. Those defendants against whom there was no prayer for process acknowledged service of the petition. This court held, that the clerk had no authority to annex to a petition a .process requiring the appearance of persons against whom there was no prayer for process; and that a mere acknowledgment of service upon a petition, and a waiver of service of the same, is not a
3. Counsel for plaintiffs in error state in their brief that their chief contention is that the case ought to have been dismissed, because the superior court of Emanuel county was without jurisdiction. If Mrs. Lizzie Y. Emmett, as administratrix of P. H. Emmett, deceased, was a necessary and proper party against whom substantial equitable relief was prayed, then Emanuel superior court had jurisdiction of the case. It was charged that the Tattnall Investment Company and the estate of P. H. Emmett were insolvent, and that the assets of P. H. Emmett & Company were covered by apparent liens which would more than exhaust them; and it wás only by invoking the aid of equity to set aside these liens and the sale thereunder which was alleged to be fraudulent, and by án accounting between the creditors, that a1 judgment either against the firm or its individual members could reach its assets. These mortgages were signed both by the partnership and the members of the firm as individuals, and the administratrix of the deceased partner was a necessary party to a proceeding in equity to set them aside. These mortgages were not only upon personalty, but also upon realty. The legal title to this real estate was not in the partnership, but in the partners as tenants in common (Hartnett v. Stillwell, 121 Ga. 386 (49 S. E. 276, 104 Am. St. R. 151)), and the representative of the estate of a deceased partner would therefore be a necessary party to a proceeding to set aside a mortgage upon such real estate, signed not only by the partnership, but •also by her decedent. Again, the contract of partnership between P. ;H. Emmett, an individual, and the Tattnall Investment Company, a corporation, was void, since the power to form a partner-' ship is not one of those which is common to all corporations, but is wholly inconsistent with the scope and tenor of the powers expressly conferred, and the duties imposed upon a corporation in the absence of such permission in the charter. Gunn v. Central R., 74 Ga. 509. Nor can the corporation as surviving partner- here 'claim the legal right to administer the estate of the partnership.
Judgment affirmed.