185 P. 850 | Cal. | 1919
This is an appeal from a judgment of dismissal given in favor of the San Jose Scavenger Company, a copartnership, upon sustaining a demurrer to a complaint.
The action was brought against the copartnership alone as a legal entity, under the provisions of section
[1] We see no good answer to the claim of appellant seasonably made, and ever since insisted on, that the attempted demurrer was not entitled to be considered. It did not purport to be the demurrer of any party to the action, for the only party defendant was the San Jose Scavenger Company, a partnership, which, for the purposes of the statute (Code Civ. Proc., sec.
[3] It is furthermore clear that in the absence of any appearance by the sole defendant, judgment in its favor of dismissal of the action against it, and for its costs, should not have been given.
It seems improper, in the absence of competent objection to the complaint, to discuss the claims made in the brief of respondent relative to its insufficiency as a pleading. We may say, however, that it appears to us that plaintiff may have a good cause of action against an existing copartnership known as the San Jose Scavenger Company, if such there be, or against Devincenzi, doing business under that name, on the theory that such copartnership, as it now exists under that name, or Devincenzi, is holding property belonging to him, a person not a member of the partnership, for which it refuses to account. If he did succeed in purchasing, at execution sale, the interest of one of the partners in the former San Jose Scavenger Company, such purchase dissolved the partnership (Civ. Code, subd. 4, sec. 2450), leaving him with his action against the remaining partner or partners to obtain his interest; but it is possible that a new partnership has been created under that name, of which he is not a member, which is withholding his property.
It is possible that Devincenzi was a member of such a copartnership, served with summons in this action, and authorized to appear for and in its name, and that the demurrer was inadvertently filed by him as an individual. *631 In that event, we think the lower court should allow him to file an amended demurrer in the name of the copartnership.
The judgment is reversed, and the cause remanded for further proceedings not inconsistent with the views herein expressed.
Olney, J., Wilbur, J., Lennon, J., Lawlor, J., and Shaw, J., concurred.