Dyer & Mason v. Sublette & Campbell

6 Mo. 14

• Court: Supreme Court of Missouri
• Decided: August 15, 1839
• Status: Published

Opinion

Opinion of the court delivered by

Tompkins Judge,

wit:

Sublette ánd Campbell sued Dyer and Mason, in the circuit court, and judgment was there in their favor, to reverse this judgment a writ of error was sued out and the cause brought here.

The action was petition in Debt founded on a statute.

• The Petition reads thus:

’ William Sublet! e and Robert Campbell merchants and traders doing business &c. in the name and style of Sub-lette -and- Campbell Plaintiffs, state that they are the legal owners of a note against the defendants William H. Dyer, and Samuel Mason, who carry on the business of merchandise in the name and style of Dyer and Mason, to the following effect: $183. 18 cts., St. Loins March 30th 1S39. Six months after date we promise to pay to the order of Sublette and Campbell one hundred and eighty three dol-18 cts., without defalcation for value received áse., this petition ther.e was a demurrer, and the Circuit Court . . it.

Tips is assigned for error. It should have been stated in. -the petition that this' note .was. made to William Sublette Robert Carppbell by the name and description of Sublette & Campbell, by' William H. Dyer and Samuel G. Mason the name and- description of Dyer & Mason, see the case of Tabor, Shaw and Tatum vs Jamison, decided last year at Palmyra, where it is said the words trading under the firm of Tabor, Shaw and Tatum, are merely descriptive of the persons suing, and do not amount to an averment that thé note set out was executed to the plaintiffs by name. The judgment of the circuit' court is reversed, and the cause will be remanded to be proceeded in conformably to this opinion. The cause of Field and Marks vs the will follow the course of this cause.”

S. M. Bay for plaintiffs in error.

1. There was no service .of process agajnst Mason, and the Circuit Court erred in rendering final judgment against him on the demurrer. ■

... . , Sec. 13th sect, of 1st art of E. Q. of 1835 title practice at law and 2d, sect, of 3d art,same title,Hempstead vs Darby Mo. E. p. 25, Bonny v. Baldwin and Spencer 3d, Mo. E. p. 49.

8. There is no averment in the petition ■ that the note set out was executed to the defendants in error by the name the firm. Tabor, Shaw & Tatum vs Jameson 3d semi ■ ■ utual decision of S, C. of 5 vol.”’

Mjljer for deffendants in error.

“The counsel for defendants in error will insist that the' court very properly overruled defts. demurrer, and that it fiid not err in giving judgment against defts.”

Opinion of Napton Judge.

“I think the petition is good under the statute, but a majority of the court being in favor of re-affirming the de* eision in Tabor, Shaw & Tatum vs Jamison, and the question being one of form; I concur in reversing the judg- ° ° ment. ’