Hirsch v. Shafer, Schwartz & Co. , 66 Miss. 439 ( 1889 )

Arnold, C. J.,

delivered the opinion of the court.

The notice filed by appellant, to show that she was not a part:ner of the firm sued, was without authority of law, and presented no issue. The partnership could be denied only by special plea, verified by oath. Code, § 1633.

But if there was no mutual misunderstanding in regard to trying •that issue without formal pleading on the part of appellant, the record shows that the notice referred to was treated by appellees as a plea, or in such manner, perhaps, as to mislead appellant, and she should, in order to bring the controversy between the parties fairly to ■trial, have been allowed to file a plea, denying the partnership under •oath, as she sought to do. This'would have been in accordance ■with the spirit of § 1581 of the code.

Reversed and remanded.