Courson v. Parker
| Decision Date | 24 November 1894 |
| Citation | 20 S.E. 583,39 W.Va. 521 |
| Parties | COURSON et al. v. PARKER et al. |
| Court | West Virginia Supreme Court |
Submitted June 11, 1894.
Syllabus by the Court.
1. A variance between the writ and declaration may be amended at any time before judgment if substantial justice may be done thereby.
2. At common law, partners cannot be sued otherwise than in their individual names, and the allegation of a partnership name is merely for the purpose of identification, and description is immaterial, and need not be proven, and hence the unnecessary use of it may be regarded as merely surplusage.
3. "At least," used in an affidavit for an attachment is synonymous with, and fairly equivalent to, the phrase "at the least," as used in the statute relating to such affidavits.
Error to circuit court, Tyler county.
Action by Courson & Hannan against Parker & Wallace. There was a judgment for plaintiffs, and defendants bring error. Affirmed.
Robert McEldowney, for plaintiffs in error.
Basil T. Bowers, for defendants in error.
L. W Courson and Morris H. Hannan, partners as Courson & Hannan instituted an action of assumpsit on the 16th day of September, 1892, in the circuit court of Tyler county against Y. U. Parker and R. W. Wallace. Summons was served on the defendants personally. On the same day an affidavit was filed for an attachment, in which the defendants were styled "Partners, as Parker & Wallace," but the attachment was issued against them individually. At the October rules, 1892, the plaintiffs filed their declaration against the defendants, in which they style them "Partners, as Parker & Wallace." At the same rules, defendants appear, and file two pleas in abatement,--the first to the action denying the partnership, and setting out that there was such a firm as Parker & Wallace, composed of M. C. Parker and R. W. Wallace, M. C. Parker being the wife of Y. U. Parker, and a resident of the city of Pittsburgh, state of Pennslyvania; the other, to the attachment setting up the same matters. Issue was joined and tried on the first of these pleas, and resulted in a verdict for the plaintiffs, which the court set aside for some reason not disclosed in the record. Without proceeding further with this issue, the plaintiffs, at the February rules, 1893, filed an amended declaration corresponding with the original writ, and simply omitting therein to style the defendants "Partners, as Parker & Wallace." Order of publication against and personal service were had on the defendants to answer this declaration. At the August term of court, the defendants appeared, and demurred to the declaration, which was overruled. The defendants pleaded non assumpsit, and tendered notice of recoupment. The court, deeming the issue on the plea of abatement no longer material, by reason of the amended declaration, set aside and gave judgment against the plaintiffs for the costs incurred by reason thereof. On the issue joined, the jury found a verdict for the plaintiffs, and assessed their damages at $2,544. A motion to set aside the verdict was overruled, and judgment entered for the plaintiffs. The plea in abatement and motion to quash the attachment were overruled, and an order entered in favor of plaintiffs against the attached property. The defendants insisted on the following errors: (1) That the amended declaration was improperly filed; (2) that the affidavit for the attachment and the attachment were not quashed.
The only reason given to sustain the first proposition is that, the first declaration having described the defendants "Partners, as Parker & Wallace," the plaintiffs had no right to file a new declaration against them as individuals without dismissing their first and bringing a new and independent suit. Without deciding whether it was necessary or material for the plaintiffs to do so or not, it is sufficient to say they had a perfect right by amendment to correct any variance between the declaration and the writ at any time before trial. Code, c. 125, §§ 12, 15. All they did do in this case was to make the original writ and declaration correspond, and, as a matter of course, the amended declaration superseded the original, and the pleas filed thereto, except in so far as they might be proper under the amended declaration.
Two reasons are given why the affidavit and attachment should be quashed: (1) Because the defendants are styled "Partners, as Parker & Wallace"; and (2) because the words "at least" are used, instead of the words "at the least." The common-law rule is that a partnership name is a mere matter of description and identification, and is not an indispensable requisite to the existence of a partnership, and, when used, only raises a disputable presumption. The conception of a partnership at common law is that it is not a thing in any way distinct from the members composing it. A different rule prevails in courts of equity, where the partnership is sometimes regarded as having a separate existence or entity. 17 Am. & Eng. Enc. Law, 912, 918. ...
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