Jaeger v. Hartman

Berry, J.- By the Oowrt In the complaint in this case the plaintiffs are described in the title of the action as partners, but there is no allegation of partnership in the body of the complaint. The defendant demurred below, claiming “ that the plaintiffs sue ostensibly as partners; but the complaint contains no allegation of partnership,” and that therefore the complaint fails to state facts constituting a cause of action. The Court below, upon the motion of the plaintiffs, ordered the demurrer stricken out as frivolous, and gave judgment for the moving party. Prom the judgment defendant appeals. We are referred to Koerster vs. Kirkpatrick, 2 Minn. 210, in support of the demurrer. It is there said (though that is not the point on which the decision in that case is based) 'that “in the title of the cause the plaintiffs appear to have brought their action as partners, and to have sued the defendants as siich, yet there is no allegation in the complaint that either plaintiffs or defendants were ever partners.” The Court refer to this as a defect in the complaint, but do not hold that it is ground of demurrer. We are clear that the defect in this case, if it be substantial in any view, cannot be reached by demurrer. The rule appears to be that the addition of some character, as for instance, executor, assignee, commissioner, president, to the name of the plaintiff in the title of the complaint, is descriptio personae only, and without something more, mere surplusage. Gould vs. Glass, 19 Barb, 179; 13 [58] Abb. Pr. P. 352; Fowler vs. Westervelt, 40 Barb., 374; See also 33 Barb., 527, 537 ; Merritt vs. Seaman, 6 N. Y., 168. The same rule would appear to apply to the addition “partners, &c.” Nothing appears in the complaint to show that the existence of a partnership was necessary to give validity to the causes of action alleged ; nor is it stated in the body of the complaint, that the plaintiffs took or held the bills of exchange as partners, or sue as partners. See Loper & Davis vs. Welch, 3 Duer, 644. The defendant further insists that “ the complaint is defective in not showing that the plaintiffs were the owners and holders of the bill at the time of the commencement of the action.” It appears sufficiently that they were the original owners, and their ownership would be presumed to continue, nothing appearing to the contrary. The defendant further urges that “the Court erred in ordering judgment for the plaintiffs, the defendant not having answered, and the plaintiffs not having demanded any judgment whatever.” The complaint in the return contains a demand for judgment for a specified sum of money, and although it is suggested by the defendant’s counsel that in .the copy of complaint served upon the defendant the demand was omitted, there is nothing in the record which authorizes us to consider the point made upon such omission. Judgment affirmed.