McCullar & Co. v. Mink

• Decision Date: 22 March 1920
• Docket Number: 20928
• Citation: 121 Miss. 829,83 So. 907
• Parties: MCCULLAR & CO. v. MINK
• Court: Mississippi Supreme Court

83 So. 907

121 Miss. 829

MCCULLAR & CO. v. MINK

No. 20928

Supreme Court of Mississippi

March 22, 1920

March 1920

APPEAL from circuit court of Prentiss county, HON. CLAUDE CLAYTON Judge.

1 PARTNERSHIP.Suit must be by or against individual partners.

Partners cannot sue or be sued by the partnership name, but the suit must be by or against the individuals composing the partnership.

2.JUSTICES OF THE PEACE.Refusal of circuit court on appeal to allow amendment by inserting names of partners held reversible error.

Under section 66, Hemingway's Code (Code 1906, section 86) providing that on appeals from justice of the peace the cause shall be tried de novo, and under section 558, Hemingway's Code (section 775,Code 1906), providing that the court shall have full power to allow all amendments to pleadings or proceedings at any time before verdict so as to bring the merits to trial, etc., a suit brought in a partnership name may be amended in the circuit court by inserting the names of the partners, and the refusal of the circuit court to allow such amendment on application therefor is reversible error.

HON. CLAUDE CLAYTON, Judge.

Suit by McCullar & Co. against W. P. Mink, filed with a justice of the peace.Verdict for plaintiffs in part, and judgment thereon, and plaintiffs appealed to the circuit court, and from its judgment, dismissing the appeal, plaintiffs appeal.Reversed and remanded.

Cause reversed and remanded.

Jas. A. Cunningham, for appellant.

Courts of law are organized, for the purpose of trying causes upon their merits, and only in exceptional cases should the trial court refuse to permit amendments of pleadings so as to bring the merits of a controversy to a fair conclusion.Greenwood Grocery Co. v. Bennett,58 So. 482; also Hemingway's Code, section 558.

When the point was raised by the appellee that the plaintiff stood in the firm name and the form questioned, then in the furtherance of justice, the trial court should have allowed the amendment so as to bring in proper parties, namely, the individual members of the copartnership.Jones et al. v. Clemmer & Son,54 So. 4.

The learned trial court evidently mistook the effect of the holding in.Lewis et al v. Cline etal., So. R. 5, page 112.Where a demurrer to a similar declaration was sustained by the trial court, but it is important to notice that no application was made to amend, and Chief Justice ARNOLD, in reference to this, laid special emphasis on the absence of an application to amend.We would cite as a general authority on this proposition, 21 R. C. L., Sec. 134, also 1 Encyclopedia Pleading & Practice, page 466.

In view of the authorities above cited, it is perturbing to us to perceive how the learned trial court could allow this case to go off at the springing of the trigger of a technicality, and to allow the merits of the cause to be consigned to oblivion.

We earnestly insist that justice demands a reversal of this cause.

E. C. Sharp for appellee.

"At common law the process and pleadings in every action were required to disclose the first name and surname of all parties thereto, the purpose being to render judicial proceedings certain and conclusive as between the parties, and to give full force and effect to the doctrine of res judicata.The requirement that the names of all parties has always been adhered to in suits by partnerships, except where modified by statute.Hence the general rule is that partners cannot sue in the firm name but all actions must be brought in the individual name of the partnership."15 Enc.Pl. &Pr., 1, pages 839-840;20 R. C. L., sec. 133;Blackwell v. Reed,41 Miss. 102.

This rule has been modified to a limited extent in this state by section 515, Hemingway's Code of Miss.By this section"actions on written instruments, the defendant may be sued by the initial letters or contraction of the christian name, used by him in his signature to such writing."But nowhere do we find where the necessity for the disclosure of the names of the partners may be dispensed with in the bringing of a suit.

In the case of Grocery Company v. Bennett,58 So. 482, cited by appellantwe find that the question there decided was based upon the pleadings in an attachment case and that there was a special statute controlling the decision in that case and which statute allowed amendment in an attachment suit and has no application to the case at bar.

"After witnesses have been examined the court will not, unless under very special circumstances, or in consequence of some event, allow the bill to be amended, 1 Enc.Pl. &Pr., page 482.

"An action improperly brought in a firm name may be dismissed on motion, or an objection to its maintenance may be raised by demurrer for want of capacity to sue."15 Ency.Pl. &Pr., page 480.Therefore I submit that this case should be affirmed.

IN BANC

OPINION

ETHRIDGE, J.

McCullar & Co. filed a suit on an open account with the justice of the peace against the appellee for goods, wares, and merchandise, amounting to ninety-six dollars and twenty-four cents balance.The affidavit to the account recited that--

"L. B. McCullar, of McCullar & Co., who, being duly sworn, says the account hereto attached for ninety-six dollars and twenty-four cents is correct as stated, and same is due from the party against whom it is charged, and that no part of it has been paid."

The account does not show upon its face who constituted the firm of McCullar & Co.; but no point was made in the justice court on the failure of the account to so state.Munk filed a counter affidavit, specifying items in the account which he did not owe, and concludes his affidavit as follows:

"That he owes the said McCullar & Co. the sum of eight dollars and fifty-five cents and has paid same into the court, and that but for said amount he owes none of said account, save the items not included in this affidavit."

The jury in the justice court found for the plaintiffs for one-half of the amount sued for, and judgment was entered from which judgment the...