Herron v. Cole

• Citation: 25 Neb. 692,41 N.W. 765
• Parties: HERRON ET AL. v. COLE ET AL.
• Decision Date: 06 February 1889
• Court: Supreme Court of Nebraska

25 Neb. 692

41 N.W. 765

HERRON ET AL.

v.COLE ET AL.

Supreme Court of Nebraska.

Feb. 6, 1889.

Syllabus by the Court.

1. This case, as set out in the record, referred to at length in the opinion, held, not to fall within the provisions of sections 24 and 25 of the Code, as the process runs against the defendants individually, their firm or partnership relation being stated as descriptio persona.

2. The method of suing and serving process provided for by the above sections of the statute is cumulative, and not exclusive, of the method formerly pursued.

3. The evidence considered, and held to sustain the verdict.

4. Instructions given and refused, examined, and held rightly given and refused.

5. In order to throw the burden of proving its corporate existence upon a corporation plaintiff, the allegation of the petition alleging such corporate character must be denied other than by a general denial of all the allegations of the petition not admitted to be true.

Error to district court, Pawnee county; BROADY, Judge.

Action on a promissory note executed by Herron & Chapman, and assigned by the payees to Cole Bros. Judgment for plaintiff, and defendants bring error.L. C. Chapman, for plaintiffs in error.

Humphrey & Lindsay, for defendant in error.

COBB, J.

This cause was originally brought in the county court of Pawnee county, where the plaintiffs recovered judgment for the amount of their claim, being the principal and interest after due, according to the terms of a promissory note. The defendants appealed the cause to the district court of said county, where the plaintiffs declared on a promissory note, made and executed by the defendants Herron & Chapman, partners, to Williams & Brown, for the sum of $140, payable on or before the 1st day of September, 1884, at bank of George & Davis, in Burchard, Neb.; that before said note became due, and for a valuable consideration, the same was transferred by indorsement, and sold to the plaintiffs, who were then the owners and holders thereof, (setting out a copy of the note and indorsement,) with the allegations that the said note had long been due and unpaid, etc.; and that there was then due and payable from said defendants to said plaintiffs, upon said promissory note, the sum of $140 and interest thereon from September 1, 1884, at the rate of 7 per cent. per annum, etc. Afterwards, by leave of the court, the plaintiffs amended their said petition by adding the words “a corporation” after the names of the plaintiffs in the title, and the words “a corporation duly organized and existing under the law of the state of Iowa” after the words “the plaintiffs,” in the introductory part of the petition.

The defendants filed their answer, consisting-- First, of a general denial. Second. That on or about the 1st day of May, 1884, there was a pretended firm doing business in the city of Tecumseh, etc. That said city of Tecumseh was the principal place where the said pretended firm did its business. The said pretended firm was known and did business in the firm name of Williams & Brown. That they had been doing business in said firm name for a longer period of time than 20 days from the date of the note mentioned in plaintiffs' petition. That the individual names of the persons composing the said firm were A. H. Williams and J. D. Brown. That A. H. Williams, the Williams of the said firm of Williams & Brown, at the town of Burchard, in Pawnee county, did propose to and offer for sale the note described in plaintiffs' petition to George & Davis, bankers, at their bank, on or about May 25, 1884, and that said A. H. Williams then and there indorsed the note for the purpose of selling and disposing of the same, as follows: “WILLIAMS & BROWN.” “A. H. WILLIAMS,” which indorsement is the indorsement set out in plaintiffs' petition. That the said George & Davis, after the said indorsement was made for the purpose aforesaid, refused to buy the said note. That the purpose for which the indorsement was made thereby entirely failed. That afterwards the said note was, by A. H. Williams, turned over to said J. D. Brown, with the said indorsement remaining thereon, which was not erased. That the said pretended firm of Williams & Brown, at the time they pretended to form said firm and engage in business, as aforesaid, did not make and severally sign, acknowledge, and deliver to and file with the clerk of Johnson county, or Pawnee county, a certificate, (here follows a description of the certificate,) required by statute to be made and filed with the county clerk by all firms and private partnerships, etc. That the said Williams and Brown were not incorporated, etc. That they held themselves out to and induced the public to believe them to be a lawful firm, composed of A. H. Williams and J. D. Brown, when in truth and in fact they were not. That the said representations were made and said inducements held out for the purpose of defrauding and misleading the public, and to avoid equitable defenses which any person might have, and to enable them to defeat the ends of justice. That the said Williams & Brown is an illegal and fictitious firm, and that defendants had no knowledge, until a long time after suit was brought against them, that said firm was an illegal and pretending firm. That the indorsement that was made at the time by the said A. H. Williams, when he offered to sell the same to George & Davis as aforesaid, and which is set out in plaintiffs' petition, is the only indorsement that was ever made upon the said note, and that the same has never been accepted by the plaintiffs. That J. D. Brown never indorsed the note set out in plaintiffs' petition, and that no person ever did so for him. That the indorsement made by A. H. Williams, above described, is the only one that had ever been made upon said note. That said note was placed in the bank of Russell & Holmes, by A. Canfield, for J. D. Brown, as collateral, and that the note was not indorsed by any one at the time of placing it in the bank of Russell & Holmes, except that of A. H. Williams, at Burchard, which is the indorsement set out in the petition. That said note was not accepted by the plaintiffs at the time it was left with Russell & Holmes as collateral. That the plaintiffs are not the real parties in interest, as required by section 29 of the Code. That defendants are not suing in the capacity of any of the persons named in section 32 of the Code. That there was and is no consideration received or paid by these plaintiffs to Williams & Brown for the note, and therefore it was of no advantage whatever to Williams & Brown or A. H. Williams to obtain the indorsement set out in plaintiffs' petition. That the indorser of said note, Williams & Brown, is a fictitious firm, and the same never was in legal existence, and that they never had power to indorse and receive or to have made in their firm name of Williams & Brown such negotiable instrument.

There was a trial to a jury, which found for the plaintiffs, and assessed their damages at $166.40.

Special findings were submitted to the jury, which were returned as follows: “(1) Did the defendants execute the note sued on? Answer. Yes. (2) If you answer the first interrogatory in the affirmative, did the defendants receive a valuable consideration for the note? A. Yes. (3) What is the aggregate amount of the principal and interest of the alleged note copied in the petition? A. $166.40.”

The defendants bring the cause to this court on error, and assign the following errors: “(1) The district court had no jurisdiction of the defendants; (2) nor of the subject matter; (3) the court erred in giving to the jury instructions 1, 3, 5, and 6, asked for by plaintiffs; (4) and the instruction 2, given on its own motion; (5) and in refusing instructions 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16, asked for by defendants; (6) and in giving to the jury special findings; (7) and in admitting the evidence of Charles A. Holmes' first depositions in Q. 1, 2, 3, 4, 6, and in same witness' second depositions, Q. and A. 2, 3, 4, 5, over objections and exceptions thereto; (8) and in admitting Q. and A. 6 and 9 of Cyrus Townsend's deposition, over objections and exceptions thereto; (9) and in admitting Q. and A. No. 3 of J. D. Brown's deposition, over objections and exceptions thereto; (10) and in excluding Q. and A. 6, 8, and 9 of the deposition of J. L. Young, over objections and exceptions thereto; (11) in overruling, and not sustaining, defendants' motion at page 83 of the record; (12) in overruling the motion for a new trial; (13) in rendering judgment for the plaintiffs, and against the defendants.”

Such of the errors as are discussed by plaintiffs in error, in the brief of counsel, will be considered. The first point arises under the first and second assignments, and has reference to the mode of service of the original summons in the action. The defendants are sued as Mary F. Herron and William H. Chapman, partners doing business as Herron & Chapman, in Nebraska. The return of the sheriff is to the effect that on the 22d day of December, 1884, he served the within-named William H. Chapman, and on the 23d day of December, 1884, the within-named M. F. Herron, by delivering to each of said defendants, etc. The contention of counsel is that the suit is against a partnership--a firm--doing business within this state, and that, under section 25 of the Code, in order to give the court jurisdiction of said firm, a service must have been made by leaving a copy of the writ at their usual place of business.

Sections 24 and 25 of the Code read as follows: “Sec. 24. 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 be known by, and it shall not...