Fowler & Wild v. Williams

Wagner, Judge,

delivered the opinion of the court.

Plaintiffs, by their firm name, commenced an action against the defendant before a justice of the peace.

In the justice’s court the parties appeared, and after the evidence was heard, a verdict was rendered for the defendant. Plaintiffs then paid the costs and took an appeal to the circuit court. In the latter court both parties appeared, and by mutual consent and agreement the case was referred. The referee took the testimony and reported in favor of the plaintiffs. No exceptions were taken to the report, and it was confirmed and judgment rendered thereon. Defendant then moved in arrest of judgment, on the sole ground that the plaintiff’s individual names were not set. out. ■

The court overruled the motion in arrest, and that is the only point disclosed by the record. An action, to be pi*operly brought, should be commenced in the chiistian and surnames of the parties. But where the declaration is in the name of a firm, if advantage is sought to be taken of the defect, it should be done by a suitable motion before the tidal is closed, so as to give the parties an opportunity to amend. If no such motion is made, and the cause proceeds to judgment, the judgment will not be void, but will be good after verdict.

Whether a judgment could be sustained against a firm, where the individual names wore not inserted in the petition, is another and very different question, which we are not called xxpon to consider*.

* Parties ought not to be encouraged in taking their chances in legal proceedings, and in indncing the court and the opposite party to believe that they have waived mere irx*egularities, and then, when they are defeated, rely upon them as a last resort.

The judgment should be affirmed. All .the other judgeB concur, except Judge Tories, who is absent.