Burlington & Missouri River Railroad v. Robert Dick & Son

7 Neb. 242 | Neb. | 1878

Gantt, Ch. J.

This action was commenced before the county judge, “exercising the ordinary powers and jurisdiction of a justice of the peace,” by defendants in error against plaintiff in error, for the possession of certain personal property and for damages for the detention thereof. The property was replevied and delivered to defendants in error. The plaintiff in error appeared specially and ex cepted to the jurisdiction of the judge for want of proper parties, but the exceptions were overruled, and the judge found for the defendants in error and entered judgment accordingly, and for damages in excess of the appraised value of the goods.

The bill of exceptions found in the record must be laid aside, because it was not authorized by law. Taylor v. Tilden, 3 Neb., 340. The only question we can consider is, whether the action will lie in the firm name only of the defendants in error.

It is well understood that, at the common law, in an action brought by partners, all the members of the firm must be made plaintiffs. The omission of the name of any partner as plaintiff may be taken advantage of at the trial under the general issue; or if it appear on the face of tbe pleadings, it is fatal on. demurrer, or on a motion in arrest of judgment, or on error. It has always been the rule at law, that all the parties in interest must join and be joined by their proper names, in an action or suit, and such is the general import of our code, for it provides generally that the precipe and petition must contain the names of the pcurties to the action, and their names, both direct and inverse, shall be entered in an index. §§ 63, 92, 322, and 1088. And the only exceptions to this general rule are : first, by section 23, it is specially provided that in actions upon bills of exchange, promissory notes, or other instruments, whenever any of the parties are designated by the initial letter or letters or contraction of the Christian name, such persons tnay be designated by the name, initial letter or letters or contraction of the Christian name; and section 24 specially provides that any company not incorporated, or partnership formed for the purpose of carrying on any trade or business, or for the purpose of holding any species of property in this state, may sue and be sued by the name such partnership may have assumed to itself, or be known by ; section 25 provides the mode of process in such cases, and section 26 specially provides that when any such company shall sue in its partnership name it shall give security for costs. And under section 1085 the “ provisions of the code, which are in their nature applicable, and in respect to which no special provision is made by statute, shall apply to proceedings before justices of the peace.”

This seems pretty clearly to bring within the jurisdiction of justices of the peace, the form of actions specially provided for in sections 23, 24, 25, and 26 of the code. But this mode of bringing an action by a partnership being unknown at the common law, and different from the general import of the statutes in respect of parties to an action, these special provisions must be strictly construed, and the exact mode of procedure required of partners must be closely pursued. Lease v. Vance, 28 Iowa, 509. Bailey v. Bryan, 3 Jones, L., 357.

The partnership may assume to itself any fictitious name and sue by such name, and no person be responsible for costs, in case the cause should be adjudged in favor of the defendant; the real parties suing are unknown to the defendant and to the court, and therefore the law wisely declares that the company shall procure some responsible resident of the county as security for costs. This is an essential prerequisite to the maintenance of the action, and it is but a reásonable and just condition precedent in an action where the plaintiffs are unknown and their action is brought in an assumed name.

Another requisite is that it must appear that the company is formed to carry on some trade or business, or to hold some species of property in this state, and is not incorporated. In the case at bar, it appears from the record that the requirements of the special provisions were not complied with ; and therefore the judgment of the district court, and also the judgment of the county judge must each be reversed and the cause remanded, with leave to defendants in error to amend and to give surety for costs upon payment of all costs which have accrued since the filing of the motion to dismiss for want of jurisdiction.

Judgment accordingly.