Davis v. Philbrick

32 A. 874, 87 Me. 196, 1895 Me. LEXIS 22

Opinion

Peters, C. J.

The writ in this case describes the defendant as W. G. Philbrick and the plaintiff as S. M. Davis. To describe parties only by the initial letters of both their first and middle names, unless some excuse for it is intimated by the pleader, is a style of description not commendable in any court. The defendant asserts his objection to it by pleading in abatement that his own name was not W. G. Philbrick but W. J. Philbrick. To this plea in abatement a general demurrer is filed by the plaintiff. Some sharp thrusts are made by the arguments and points submitted on each side.

We incline, however, to the belief that the demurrer should be sustained, because the defendant in lieu of the name given him by the writ does not give the whole of the name which belongs to him. He should not only correct the mistake as to the middle initial of the name, but should supply what the first initial stands for.

We are, we think, correctly assuming that the letter W is not the real name of the defendant. If it be so, or if he is known only in that way, it would be so unusual and unlikely a thing that he should so state it specially in his plea.

Inasmuch, then, as we must presume that the defendant has pleaded his true name in part only correctly, his plea in abatement fails.

Demurrer sustained. Plea bad. Judgment for plaintiff.