Ruby H. Palmer applied here for a writ of mandamus to require the Honorable DeWitt T. Gray, as Circuit Judge of the Fourth Judicial Circuit of Florida for Duval County, to hear and determine an action brought by the petitioner in the Circuit Court for that County against John H. Swisher to recover damages because of the killing of the petitioner's husband through their carelessness and negligence.

The petition alleges that the action was brought against "John H. Swisher and Carl S. Swisher, non-residents of the State of Florida and co-partners trading and doing business in the State of Florida under the firm name of John H. Swisher Son."

It is alleged that summons was directed to the sheriffs of the State of Florida commanding them to summons the defendants as described and that it was executed by "delivering a true copy thereof to V. E. Smallwood a *Page 1130 business agent and accredited representative of the within named defendant co-partnership, John H. Swisher and Carl S. Swisher, non-residents of the State of Florida and co-partners trading and doing business in the State of Florida, under the firm name of John H. Swisher Son, and at the same time showing the original writ and explaining the contents thereof, it appearing that personal service can not be made upon either of the above-named individual co-partners in accordance with law."

The defendants appeared specially and moved to quash the return. The motion was granted. Thereupon the petitioner applied for a writ of mandamus to compel the judge to hear and determine the action.

The petitioner says that the return shows a valid service of process under the provisions of Section 2602, Revised General Statutes, providing for service of process upon any business agent or accredited representative of any firm or co-partnership which shall conduct or carry on a business or business venture in the State of Florida or shall have an office or agency in the State and such service shall be binding upon the said co-partnership and the individual members thereof, provided that in all cases it shall appear that personal service cannot be made upon such individual co-partners or either of them in accordance with the statutes "now of force in this State" and provided further that the section shall apply only to firms and co-partnerships composed wholly of persons not resident in the State of Florida.

The Legislature enacted the law in 1911. It was Chapter 6224 and was approved June 3, 1911.

The purpose of the Act, as its title recites, was to provide a method of serving process upon non-resident co-partners having an office or conducting a business in this State. *Page 1131

There is no provision in the statutes of this State for suing or obtaining judgment against a partnership as such. At common law the process and pleadings in every action were required to disclose the Christian name and surname of all the parties thereto; the purpose being to render judicial proceedings certain and conclusive as between the parties and to give full force and effect to the doctrine of res judicata. This rule does not apply to corporations and in some jurisdictions by statutory enactment it no longer applies to partnerships. See note to Spaulding Mfg. Co. v. Godbold, 92 Ark. 63, 121 S.W. Rep. 1063, as reported in 29 L.R.A. (N.S.) 282; Richardson v. Smith Co., 21 Fla. 336; Marx v. Culpepper, 40 Fla. 322,34 South. Rep. 59.

In this State, however, the theory that a partnership is a legal entity distinct and separate from the parties composing it does not obtain nor is it recognized by the United States Courts.

See Francis v. McNeal, 228 U.S. 695, 57 L. Ed. 1029,33 Sup. Ct. Rep. 701, L.R.A. 1915E, 706; Marx v. Culpepper,supra.

A corporation domiciled in one State may do business in another state but by virtue of the consent of the latter state, it is a matter of grace; a non-resident person, however, may do business in any state not by virtue of the state's consent but by virtue of the Federal Constitution. The property which he sends into the state he submits to the jurisdiction of the courts, but not his person. Nor is it at all clear in reason that when a non-resident of the state comes into this State to transact business that he waives his right to personal service of process in actions in personam because of the existence of the statute providing for constructive service of process upon him, when in law there is no necessity nor consideration for his so doing. *Page 1132

Counsel for petitioner argue that by virtue of the Statute, Section 2602, supra, a partnership must be regarded as a distinct legal entity so far as service of process on the partnership is concerned. Even if such view should be taken the scope of the statute would necessarily be restricted to such cases as those in which the proceeding would be in rem, because a judgment in personam would not be valid in the absence of jurisdiction of the person, which can be obtained only by voluntary appearance or personal service of process. In the case of Nathan v. Thomas, 63 Fla. 235, 58 South. Rep. 247, Ann. Cas. 1914A 387, the action was upon a promissory note against Thomas, Perry and Leighton as late copartners. There was personal service of process upon Thomas and Leighton. Perry could not be found and, of course, was not served with process. The court held that the judgment obtained was good so far as the firm assets were concerned and so far as the individual property of the two parties who were served with process was concerned. But the proceeding might just as well have been one in rem so far as partnership assets were concerned. The case merely involved the application of Section 1404, General Statutes, now Section 2601, Revised General Statutes, providing for service of process on any one member of a partnership where the process is sued out against several persons composing the firm, and providing that the plaintiff may then proceed to judgment and execution against them all.

The judgment and execution issued upon it however could only reach the partnership lands and assets and the individual property of the parties served with process, but not the individual lands of the person not served with process. See Florida Brewing Co. v. Sendoya, 73 Fla. 660,74 South. Rep. 799.

In the case at bar the declaration was in tort. It does *Page 1133 not even appear that it was a tort for which the alleged partnership was liable. From anything appearing to the contrary the persons composing the alleged copartnership were sued as tort feasors. They are not sued as copartners for a tort for which the copartnership, as such, is liable. At least it does not so appear from the petition. In any case it is an action in personam in which personal judgment against the defendants is sought upon constructive or substituted service where the defendants are admittedly not subject to personal service.

A Kentucky statute similar to the one under consideration, identical in point of purpose, variant only in phraseology, was held unconstitutional. See Moredock v. Kirby, 118 Fed. Rep. 180; also Flexner v. Farson, 268 Ill. 435, 109 N.E. Rep. 327, Ann. Cas. 1916D 810, and cases cited.

We are of the opinion that the statute referred to, if valid at all, applies only to actions against persons as copartners upon partnership liabilities; that as it affirmatively appears from the petition that the action is in personam, against persons upon a joint liability in tort but not necessarily one for which the partnership, as such, or the parties as copartners are liable, the statute does not apply, that the Circuit Judge correctly quashed the service of the process.

We do not in this case consider the constitutionality of the Act. That question is reserved.

Alternative writ denied.

BROWN AND BUFORD, J. J., concur.