Brownson v. John A. Metcalfe & Co.

1 Handy 188

• Court: Ohio Superior Court, Cincinnati
• Decided: December 15, 1854
• Status: Published

Opinion

Gholson, J.

delivered the opinion of the Court.

This case comes before us on questions reserved from the Special Term. The first question is, whether the act of the General Assembly, Swan's Stat. 706, authorizing suits to be brought against a partnership by its firm name without setting forth in the process and pleadings or proving on the trial the names of the persons composing the company, extends to an action against non-resident partners, in which an order of attachment against their property has been issued ? We think that the proper construction of that statute, limits its operation to suits against, companies or associations of persons formed for carrying on business, or holding property in the State of Ohio, and who have a place of business in the county in which the suit is brought. The second section, taken in connection with the first, we think, requires this construction. It was, therefore, irregular to bring the action, and issue the order of attachment, as appears to have been done in this case.

The next question is, whether the defendants, not having moved to dismiss the proceedings, which we suppose would have been the proper remedy, but having filed an answer, on the part of the partnership, in its-firm name, and a verdict having been rendered on a defence set up in the answer, the objection can now be taken? We think that it is properly a matter resting in the sound discretion of the Judge sitting in the Special Term, whether, under such circumstances, the objection should be entertained. The- act of the defendants, in entering an appearance, by filing an answer, must be considered as so far a waiver of the irregularity, and a submitting to the jurisdiction of the Court, as to preclude them from asserting what might have been, at one time a strict legal right, (119 Ohio.) And yet, the Court may well so far regard the importance of regularity in its proceedings, as to require them to be corrected by amendment, or otherwise; and with this view, as both parties may be considered in some degree in fault; one for irregularity in the proceedings, and the other for not objecting thereto, at the proper time, and in the proper manner; the Court may set aside what has been done, on such terms as may be thought just a.nd proper. Under these views, the case'will he remanded to the Special Term, for further proceedings.

C. W. Grames and Wm. Johnston for plaintiffs.