Cook v. Fowler

35 P. 431, 101 Cal. 89, 1894 Cal. LEXIS 987

Opinion

Searls, C.

Defendants appeal from a final judgment against them and in favor of plaintiffs for five hundred and sixty-one dollars and seventy-five cents and costs upon a promissory note made by defendants. There is no statement or bill of exceptions.

There is but a single point made by appellant. It is that the complaint shows that plaintiffs were copartners under a designation not showing the names of the persons interested as partners, and that they have failed to aver or prove a compliance with the provisions of sec tions 2466 and 2468 of the Civil Code, by filing and publishing a certificate stating the names and place of residence of the copartners as therein provided.

The point is not well taken. The failure to make, file, and publish the certificate in question is matter of defense, to be set up by defendants, and, not having been so taken, is waived. (Phillips v. Goldtree, 74 Cal. 151; Garloch v. Gagnacci, 88 Cal. 600.)

The judgment appealed from should be affirmed.

Vancliee, C., and Haynes, 0., concurred.

For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.

De Haven, J., McFarland, J., Fitzgerald, J.