Bovee v. De Jong

116 N.W. 83, 22 S.D. 163, 1908 S.D. LEXIS 48

• Court: South Dakota Supreme Court
• Decided: April 9, 1908
• Status: Published

Opinion

EUEEER, J.

Respondents are residents of Parker, and constitute a partnership transacting business in that city under the name of Bovee & Morfitt, and the only point urged as a defense to this action is that they have never published and filed a certificate stating their place of residence and names,¡ in conformity with Sec. 1762'o’i'tbe ’-Revised"Civil ¿ode" which reads, as follows: “Except . 1 i, O', 1 ,: ¡.JO- /> !<• >1 i;i "I" . .1 •' V;:.'"'- ■ as otherwise,provided in the next section, every partnership transacting business ini tlii's state under a fictitious name, or a designation not showing the names of the personJs interested as partners in -such'business must file with fbe clerk of the circuit court of the county or subdivision in ’ which its principal place of business is situated^, a -certificate stating the names in full of all the members of such partnership, and their places of residence, and publish the same once la week, for four'successive weeks, in a newspaper published in the county, if there be one, and, if there be none in such county, then in a newspaper published in an adjoining county.” Als the omission has no invalidating influence upon what has been done, land the only penalty imposed -by séctidn'1764 for a violation of the requirement is the abatement- of “any action on or on account of any contracts 'm'áde ót t'r'arisáctióans had in their partnership ñamé” until‘ a, certificate ’is made, and published, such. compliance at airy . time; removes- all. disability as to prior and subsequent contracts or transactions. Heegaard v. Dakota Loan & Trust Co., 3 S. D. 569, 54 N. W. 656. The foregoing sections óf our statute appear to have, been -adopted from California, where it is settled -that no certificate is required where the firm name is composed of the surnames of all' persons interested as partners. Pendleton v. Cline, 85 Cal. 142, 24 Pac. 659; Carlock v. Cagnacci, 88 Cal. 600, 26 Pac. 597. The full name of each individual member of a parneiiship transacting business under a fictitious name or style, o-r a designation that is obscure as to the membership, is likely to 'be ¡of importance to the public, but the 'surnames of two men -constituting a firm such as “Bovee & Morfitt” is sufficient 'in the way of notice to--enable all'interested persons to easily ascertain the initials or Christian names -o-f the • respective' partners with whom they may have occasion to deal. . The firm name under consideration is not fictitious, but designates the names of the persons interested as partners, -and, the statute requires nothing more.

The judgment appealed from is affirmed.