Morgridge v. Stoeffer ( 1905 )

Engerud, J.

The plaintiffs, M. J. Mo-rgridge and F. E. Merrick, who are partners doing business in the firm name of Morgridge and Merrick, commenced this -a-ction in justice court. The partnership name only appeared1 in- the summons-, without -showing the Christian names of each of the two- partners. The defendant appeared specially on th-e return- day of the summons, and moved to dismiss the action on the ground that the summons failed to set forth the names of the individuals -composing the plaintiff firm. The justice denied the motion. The -defendant excepted to the ruling, and, so far as the record- discloses, took no further part in the -proceedings. After denying -defendant’s motion to- dismiss, the justice permitted the summons to -be amended by inserting the Christian names an-d surnames of the two -partners, and a -complaint in proper form was also- filed. Judgment was thereupon entered for the plaintiffs. The defendant appealed to the district court on question of law only. The -district court held that the justice erred in overruling defexidaxit’s motion, and -directed judgment to be entered setting aside the justice’s judgment and dismissing the action. The -plaintiff thereupon appealed from the judgment of the district court.

Defendant’s contention is that the use of tire partnership’s name to- -designate the plaintiffs in the summons was a fatal irregularity, equivalent to an- entire omission of the name of any plaintiff, and hence the summons was a nullity. It is true that the use of the partnership name as the only designation of plaintiffs was irregular. The summons was not, however, a nullity for that reason.- The partnership name furnished the means of identifying the plaintiffs, and it cannot -therefore be said that the firm name-was the same as no name. It was merely air irregularity which could be waived by the defendant, if he failed to object, and -could be cured by amendment. Enc. Pl. & Pr. vol. 15, p. 841, and notes; Bank v. Magee, 20 N. Y. 355; Barber v. Smith, 41 Mich. 138, 1 N. W. 992; Johnson v. Smith, Morris (Iowa) 106.

The defendant was -entitled to have the record disclo-se on its face the names of all tire persons who composed the plaintiff firm. He was not, however, entitled to a dismissal of the action, unless the plaintiffs failed or declined to make the necessary amendment. It is .provided by the Code of Civil Procedure (Rev. Codes 1899, section 5297) that any pleading, process or proceeding may be amended “by adding or striking out the name of any party; or by correcting a mistake in the name of a party, or a mistake in any other respect.” It is contrary to the policy of the Code of Civil Procedure to dismiss an action for mere irregularities of practice which can be remedied by amendment without prejudice to the substantial rights of the .parties. It cannot be pretended that the amendment allowed by the justice in -this case could prejudice defendant’s rights in the slightest degree. The provisions of the Code of Civil Procedure govern the proceedings in justice court as far as applicable, when the mode of procedure is not prescribed by the Justice Code. Rev. Codes 1899, section 6625. There is nothing in the latter Code inconsistent with the observance by a justice of the provisions of section 5297.

We attach no importance to the fact recited in the abstract that the defendant withdrew after the denial of his motion and before the amendment. If we regard defendant’s motion merely as an objection to the jurisdiction, it was properly overruled, and that was evidently defendant’s contention, as he appeared specially only for the purpose of the motion, thereby denying the, jurisdiction of the court. If we disregard the special appearance and treat the motion as a general appearance, the motion was likewise properly denied, because, as we have already shown, the defendant was not entitled to an unconditional dismissal. The justice properly granted permission to amend, and, although it would have been better practice to direct the amendment and withhold the dénial of the motion until after the amendment was made, the course pursued, as shown by the docket, accomplished the same result. The defendant could not, by withdrawing from the case in the midst of the hearing, immediately after the adverse ruling, deprive the court of jurisdiction to .proceed therewith, and by subsequent orders remove any vice in the ruling complained of.

The judgment of the district court is reversed, and that court will enter judgment for the plaintiffs, affirming the justice’s judgment, and for the recovery of plaintiff’s taxable costs and disbursements.

All concur.