McJunkin v. Placek & Fitl

114 N.W. 411, 80 Neb. 373, 1907 Neb. LEXIS 69

• Court: Nebraska Supreme Court
• Decided: December 18, 1907
• Docket: No. 15,020
• Status: Published

Opinion

Good, C.

Placek & Fitl commenced this action in justice court to recover on an account. The defendant, by motion and objection, properly raised the question that plaintiff had not legal capacity to sue. His motion and objection were overruled and judgment xvas rendered for the plaintiff. Defendant took the case on error to the district court, where the ruling of the justice court was sustained and the petition in error dismissed. Defendant appeals to this court.

The only question for consideration is: Did the record disclose that plaintiff had capacity to maintain the action ? Plaintiff’s bill of particulars was entitled as follows: “Placek & Fitl, a firm composed of Mike PJacek and James Fitl, Plaintiffs, William McJunkin, Defendant.” There is no allegation or reference in the bill of particulars as to the organization, business or character of the plaintiff. The action is prosecuted in the name of a copartnership. Under the common law this Avas not permissible. The rule of the common laAV has been abrogated in this state by section 24 of the code, AAdiich permits a partnership to sue and be sued in its partnership name. This court has held, in Burlington & M. R. R. Co. v. Dick & Son, 7 Neb. 242, that the statute, being in derogation of the common laAAq should be strictly construed. A strict construction of the statute requires the plaintiff, Avhen it is a partnership, to set forth in the pleadings the facts AAdiich Avould shoAAr that it comes within the provisions of the statute. Under this section of the statute it is necessary that the pleadings should in some Avay disclose that the copartnership Avas formed for the purpose of carrying-on trade or business or for the purpose of holding property in this state. The bill of particulars is silent in this respect. It fails to sIioav that it was formed for the purpose of carrying on trade or business or for the purpose of holding property in this state. It therefore fails to disclose that the partnership is authorized to maintain the action. The construction of this statute has been before this court on a number of occasions, and the AdeAvs herein expressed find support in the following cases: Burlington & M. R. R. Co. v. Dick & Son, supra; Jansen & Co. v. Mundt, 20 Neb. 320; Weisz & Mall Co. v. Davey, 28 Neb. 566. It follows that the judgments of the justice court and of the district court were both wrong and should be reversed.

We therefore recommend that the judgment of the district court be reversed and the cause remanded for further proceedings consistent with this opinion.

Duffie and Epperson, CO., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed.