Jones v. Tuller

Wagner, Judge, delivered the opinion of the court. The record in this case is full of irregularities. The petition is so manifestly defective in essential particulars and allegations that the omissions could not be cured^by verdict or default, and the motion in arrest should have been sustained by the court. From the petition, it is difficult to tell who were intended tobe sued as defendants, and in what capacity they were attempted to be held liable. The action purports to be against “Butterfield, Gf. M. Tuller, and all other persons who composed the Overland Mail Company”; and in the affidavit for an attachment, it is alleged that they are a corporate body whose chief office is out of this State. The pleader was evidently endeavoring to bring his action and declare against a corporate body, but wholly failed to do so in any maimer known to the rules of legal pleading. Nor can the petition, by the most favorable and liberal rules of construction, be tortured into a declaration against a partnership. There is no averment that they were partners, nor any apt words used by which such a relationship could be inferred. And under no possible circumstances can it be contended that there is any sufficient allegation or averment in the petition to charge the appellant G-. M. Tuller in his private individual capacity, although it would seem that was the final decision in the court below when judgment was rendered against him. Our Practice Act, liberal as it is, was never designed to dispense with the statement of a legal cause of action, and such carelessness (to characterize it by no harsher term) in pleading cannot be too severely reprehended. All the defects that we have above adverted to, were not comprehended in the motion in arrest of judgment, but they are errors apparent on the face of the record, which this court will judicially notice. It becomes unnecessary to notice the subsequent errors complained of, as the judgment [367] will be reversed, with leave to the plaintiff to amend his petition. Reversed and remanded. Judge Holmes concurs'; Judge Lovelace absent.