McCullar & Co. v. Mink

Ethridge, J., delivered the opinion of the court. McCullar & Co. filed a suit on an open account with the justice of the peace against the appellee for goods, wares, and merchandise, amounting to ninety-six dol [832] lars and twenty-four cents balance. The affidavit to the account recited that— “L. B. McCullar, of McCullar & Co., who, being duly sworn, says the account hereto attached for ninety-six dollars and twenty-four cents is correct as stated, and same is due from the party against whom it is charged, and that no part of it has been paid.” The account does not show upon its face who constituted the firm of McCullar & Co.; but no point was made in the justice court on the failure of the account to so state. Munk filed a counter affidavit, specifying items in the account which he did not owe, and concludes his affidavit as follows: “That he owes the said McCullar & Co. the sum of eight dollars and fifty-five cents and has paid same into the court, and that but for said amount he owes none of said account, save the items not included in this affidavit. ’ ’ The jury in the justice court found for the plaintiffs for one-half of the amount sued for, and judgment was entered, from which judgment the plaintiffs appealed to the circuit court. When the circuit court convened the defendant moved the court to dismiss the case, for the reason that suit is brought in the name of the partnernership, and not in the names of the individuals constituting the partnership, and that nowhere does it appear in the record what the names of the partners are, or who McCullar & Co. are. Thereupon the plaintiffs asked leave to amend, to show who McCullar & Co. consist of, by inserting the proper names composing the partnership, which motion of the plaintiffs to amend was by the court overruled, and the motion of the defendant to dismiss was sustained, from which judgment, dismissing plaintiffs’ suit, this appeal is prosecuted. Section 66, Hemingway’s Code (section 86, Code of 1906), provides that on appeal from a justice of the peace court to a circuit court the case shall be tried [833] anew in a summary way without pleadings in writing, etc. Section 558, Hemingway’s Code (section 775, Code of 1906), reads as follows: ■ “775. Amendments Allowed. — The court shall have full power to allow all amendments to be made in any pleading or proceeding at any time before verdict, so as to bring the merits of the controversy between the parties fairly to trial, and may allow all errors and mistakes in the name of any party or in the form of the action to be corrected; and the court shall require all such amendments to be made on such terms, as -to costs and delay, as may be proper to prevent surprise or undue advantage. Either party may except to the decision of the court allowing or refusing amendments, and the same may be assigned for error. ’ ’ In Greenwood Grocery Co. v. Bennett, 101 Miss. 573, 58 So. 482, 598, this court held that under section 775, Code of 1906, above set out, it was error, on a motion to quash an attachment because the bond did not describe plaintiff as a corporation, to refuse to permit plaintiff to amend. The court in that case said: ‘ ‘ It seems clear that the plaintiff should have been allowed to amend the attachment proceedings, or to have filed a new bond and affidavit. An amendment should have been allowed to all of the defects which we have not mentioned in the statement of the case. Courts of law are organized for the -purpose of trying causes upon their merits, and only in exceptional cases should the trial court refuse to permit amendments of pleadings or proceedings.” The appellee relies upon Lewis v. Cline, 5 So. 112, and Blackwell v. Reid, 41 Miss. 102. In the last case it was held that partners could not sue and be sued in the partnership name, and in the case of Lewis v. Cline, supra, it was held that a declaration not showing who constituted the members of the partnership suing in the partnership name is demurrable*. The question of amend [834] ment or the power to amend was not decided adversely to the contention of the appellant in this case. Of course the declaration or account, not showing the persons composing the partnership, was subject to demurrer; but, on application to amend, the amendments should be allowed, section 775, Code of 1906 (section 558, Hemingway’s Code). The court, therefore, erred in refusing to allow the amendments, and in sustaining the motion to dismiss, and for these errors the cause is reversed and remanded. Reversed and remanded.