Stever v. Brown

• Decision Date: 03 January 1899
• Citation: Stever v. Brown, 119 Mich. 196, 77 N.W. 704 (Mich. 1899)
• Court: Michigan Supreme Court
• Parties: STEVER ET AL. v. BROWN.

77 N.W. 704

119 Mich. 196

STEVER ET AL. v. BROWN.

Supreme Court of Michigan

January 3, 1899

Error to circuit court, Muskegon county; Fred J. Russell, Judge.

Replevin by A. E. and H. H. Stever against Horace Brown, brought in justice court. There were verdict and judgment in favor of plaintiffs in the circuit court, to which the cause was taken by special appeal by defendant, who brings error. Affirmed.

F. W. Cook and J. E. Sullivan, for appellant.

Lyon &amp Hadsell, for appellees.

HOOKER J.

An action of replevin was brought in justice court upon an affidavit made by Henry H. Stever. It alleged that "Henry H. Stever, one of the firm of A. E. and H. H Stever, co-partners, being sworn, says that one bicycle, *** of the personal goods and chattels of the said firm of A. E. and H. H. Stever, is unlawfully detained *** by Horace Brown, and that said A. E. and H. H. Stever are now lawfully entitled to the possession of the said goods and chattels. And deponent further says that said goods and chattels have not been taken for any tax *** against the goods and chattels of said A. E. and H. H. Stever, and that said A. E. and H. H. Stever claim one hundred dollars damages," etc. The writ commanded the delivery of the property to "A. E. and H. H. Stever, co-partners, plaintiffs herein." The defendant appeared specially for the purpose of a motion to quash upon the grounds: (1) Because the affidavit does not show that the property described was not taken for some tax, fine, or assessment, or upon execution against either of the plaintiffs; (2) because the action was brought in the name of a firm, and not its individual members, and because the names of the persons composing the firm are not given, and it not appearing that they were unknown, as the affidavit was made by one of said members, who should be presumed to know them. This motion was overruled, and a plea of the general issue was then filed, and trial had, resulting in a judgment for the plaintiffs. The case was taken to the circuit court by special appeal; the errors alleged being those stated, and the further point that the affidavit was "not sufficient in law to authorize the issuance of the writ of replevin." Upon the hearing the special appeal was dismissed, and on trial of the cause a verdict and judgment were rendered in favor of the plaintiffs. The defendant has brought the case to this court by writ of error, and the questions stated are again presented.

It is an ancient rule of the common law that parties must sue by their Christian and surnames, and that anything less is insufficient; and it was also a rule that actions should be brought in the names of co-partners, and not co-partnerships. The latter rule is relaxed in this state by How. Ann. St. � 6872, which permits actions to be brought in the firm name where the names of the persons composing it are not known and gives to plaintiffs in such cases the right to amend by inserting the names of the partners at any time before the pleadings are closed. There is force in the claim that this action was not begun in the name of the co-partnership, but in the names of A. E. Stever and H. H. Stever, and that the affidavit implies that the firm consists of these two persons, and states that they (not the firm) are entitled to the possession of the chattels, and that the property is not held under any seizure, etc., against the goods and chattels of the Stevers (not the firm), and that the damages are claimed by them, and that, while "A. E. and H. H. Stever" may be the firm name, it is also an easy way of naming two persons, i. e. A. E. Stever and H. H. Stever, and it was apparently so treated by the justice in making his writ. The writ speaks of them as "plaintiffs," not "plaintiff," indicating that the two Stevers were understood to be the parties to the action, and that they sue as co-partners. We may, therefore, hold that the action was not commenced in the name of a partnership, and, if an amendment of the names of the plaintiffs was necessary, it was not by reason of the application of section 6872, but because the Christian names were not given. The reason given for the requirement that parties should sue by their Christian as well as surnames is that a defendant has a right to be assured of the identity of the person who sues him. See Fisher v. Northrup, 79 Mich. 287, 44 N.W. 610. Bacon declares that "it is repugnant to the rules of the Christian religion that there should be a Christian without a name of baptism." 4 Bac. Abr. 752. This is a clue to the origin of the rule adhered to in Schofield v. Jennings, 68 Ind. 233, i. e. that since the time of William of Normandy "a full name consists of one...