Choctaw Lumber Co. v. Gilmore

1902 OK 3, 68 P. 733, 11 Okla. 462, 1902 Okla. LEXIS 12

• Court: Supreme Court of Oklahoma
• Decided: February 18, 1902
• Status: Published

Opinion

Opinion of the court by

McAtee, J.:

The declarations1 of the statute are peremptory that every partnership transacting business in the territory under a fictitious name shall file a certificate with the clerk of the district court showing the names of the persons interested as partners in the business, and that it shall be filed, as is fully and particularly stated in the sections of the statute heretofore set forth, and be published once a week for four consecutive weeks, etc.; and that persons doing business as partners contrary to the provisions of this article shall not maintain any action on account of any transaction or transactions made in their partnership name in any court of the Territory until they have first filed the certificates, and made the publication required.

There is no room for interpretation or construction, and it is not within the province of the court to undertake by some adroit interpretation, to disregard or .to destroy the force of provisions the statute expressly, specifically, definitely and emphatically stated and undoubtedly intended for the protection of the citizenship of the territory which transacts business with any partnership doing business under á fictitious name.

The certificate provided for by the statute was filed in attempted conformity thereto on the 9th of October, the same day upon which the action was begun. The plaintiffs were not qualified or entitled to begin the action until they had made the publication herein required, which is that, “the certificate shall be published once a week for four consecutive weeks in a newspaper published in the county, if there be one.”

And this is the view taken by the supreme court of California on August 9, 1883, in Byers et al. v. Bourrett, 28 Pac. Rep. 61.

But the plaintiffs sought to obviate tbe difficulty, which they had encountered, by assigning their various interests to McKee, and procuring his substitution as plaintiff after the action had been commenced. The plaintiffs could not thus avoid the requirements of the statute. They had no right to begin the action at the time they did, and the substitution of McKee availed them nothing since he could have acquired no greater right than the persons and firms constituting “The Choctaw Lumber Company.” They had no right to maintain the action on the 9th of October, and they could not thereafter initiate the right to sustain that action by subsequent 'sale and assignment to one of their number.

The judgment is affirmed.

Hainer, J., who presided in the court below, not sitting; All the other Justices concurring.