Church v. D. R. Callihan & Co.

• Decision Date: 05 November 1896
• Docket Number: 6862
• Parties: HENRY T. CHURCH v. D. R. CALLIHAN & COMPANY
• Court: Nebraska Supreme Court

68 N.W. 932

49 Neb. 542

HENRY T. CHURCH v. D. R. CALLIHAN & COMPANY

No. 6862

Supreme Court of Nebraska

November 5, 1896

ERROR from the district court of Frontier county. Tried below before WELTY, J.

REVERSED AND REMANDED.

W. S Morlan, for plaintiff in error.

J. L White, contra.

OPINION

HARRISON, J.

This action was instituted against the plaintiff in error in the district court of Frontier county, defendant in error being designated therein as D. R. Callihan & Co. with no statement that it was formed for the purpose of carrying on or doing any business or holding any species of property in this state, or pleading the names of the individual members of the partnership. That the defendant in error was a partnership appears from the verification to the petition filed, as follows: "D. R. Callihan, being one of the members of the firm plaintiff, says that he has read the foregoing petition; that the matters therein set forth are true as he verily believes." To the petition the plaintiff in error interposed a demurrer as follows: "The defendant demurs to the plaintiff's petition for the following reasons First--The plaintiff has no legal capacity to sue. Second--There is a defect of parties plaintiff. Third--The petition does not state facts sufficient to constitute a cause of action;" which was overruled and judgment rendered for defendant in error. To obtain a review of the action of the trial court the case is presented to this tribunal.

Counsel for defendant in error states that when the demurrer was heard and overruled in the district court plaintiff in error was allowed thirty days in which to answer; that this was a waiver of the right to further insist on the objections to the petition raised by the demurrer. The record as filed in this court, on the subject of the hearing and ruling on the demurrer, etc. is as follows:

"Afterwards, to-wit, on the 6th day of November, 1893, this case came on for hearing on the petition of the plaintiff, and the defendant's demurrer thereto; on consideration whereof the court doth overrule said demurrer, to which ruling of the court the defendant excepts.

"And afterwards, to-wit, on the 5th day of March, 1894, the defendant having failed to plead further or answer in said case, and the defendant not desiring to plead further in said case, but electing to stand on said demurrer, the plaintiff demanded judgment," etc.

In our considerations of the questions discussed we must be governed, as to what occurred in the trial court, by the statements contained in the journal entry which we have just quoted. One ground of the demurrer herein was that the plaintiff, defendant in error, had no legal capacity to sue. Section 24 of our Code of Civil Procedure, reads as follows "Any company or association of persons, formed for the purpose of carrying on any trade or business or for the purpose of holding any species of property in this state, and not incorporated, may sue and be sued by such usual name as such company, partnership, or association may have assumed to itself or to be known by, and it shall not be necessary in such case to set forth in the process or pleading, or to prove at the trial, the names of the persons composing such company." In respect to the provisions of the foregoing section it has been said: "But this mode of bringing an action by a partnership being unknown at the common law, and...