A. B. Rawlins Co. v. Solomon

OSBORN, Y. C. J.

Plaintiff in error, A. B. Rawlins Company, sued Albert Solomon, Jr., in the justice court of Ardmore township to recover on an installment contract the sum of $34.20, together with $18.-42 attorney’s fee, to which the defendant in the justice court filed an answer denying any liability, but tendered $22.75 into court, the difference between the sums being interest. Judgment resulted in the justice court in favor of plaintiff. Appeal was taken to the district court, and thereafter defendant amended his answer to allege that plaintiff was a partnership doing business under a fictitious name and had not given notice of its membership as required by law.

On trial the court found that plaintiff was a fictitious partnership and had not complied with the law, but directed that defendant pay in to the court clerk the sum of $22.75, tendered by his pleadings and that defendant recover costs.

It is contended that the court erred in finding that A. B:. Rawlins Company was a partnership doing business under a fictitious name, and that it had not complied with the statutory provisions relating to the filing of a certificate of partnership. We do not find it necessary to pass upon this question, since the trial court found that in any event plaintiff had waived the interest on said obligation, and the defendant tendered into the court the above-mentioned sum, for which the court rendered judgment. This finding of the trial court is sustained by the evidence.

We conclude that the error of the court, if any, was without substantia] injury to plaintiff.

The judgment of the trial court is affirmed.

McNEILL, C. J., and BAYLESS, WELCH, and CORN, JJ„ concur.