Hyperlawhypertext legal databasebeta Cook v. Fowler 101 Cal. 89

← Cases

Cook v. Fowler

101 Cal. 89 Court Department Two. Decision date 1894-01-08 Docket No. 19220 English

Contents

Majority

p. 89
[No. 19220.
Department Two.
January 8, 1894.]
NEIL COOK et al., Respondents, v. TILMAN FOWLER et al., Appellants.

Headnote

Partnership — Failure to File Certificate—Pleading—Matter of Defense—Waiver.—The failure of a partnership, doing business under a designation not showing the names of the persons interested as partners, to make, file, and publish a certificate stating the names and place of residence of the partners, as required by sections 2466 and 2468 of the Civil Code, is a matter of defense to an action by the partnership to be set up by the defendants, and if not so taken is waived, and cannot be urged for the first time upon appeal.
Appeal from a judgment of the Superior Court of San Luis Obispo County.
The facts are stated in the opinion.
Thomas Rhodes, for Appellant.
The partnership averment clearly brings the plaintiffs within the rule applicable to partners doing business under a designation, constituting a fictitious name. (Civ. Code, secs. 2466, 2468.)
Venable & Goodchild, for Respondents.
The failure of plaintiffs to make or publish th,e partnership certificate required by law should have been set up as matter of defense, and as it was not it cannot now be advanced for the first time. (Phillips v. Gold-tree, 74 Cal. 151 ; CarlocJc v. Cagnacci, 88 Cal. 600 .)

Defendants appeal from a final judgment against them and in favor of plaintiffs for five hundred and sixty-one dollars and seventy-five cents and costs upon a promissory note made by defendants. There is no statement or bill of exceptions.

There is but a single point made by appellant. It is that the complaint shows that plaintiffs were copartners under a designation not showing the names of the persons interested as partners, and that they have failed to aver or prove a compliance with the provisions of sec

p. 90
tions 2466 and 2468 of the Civil Code, by filing and publishing a certificate stating the names and place of residence of the copartners as therein provided.

The point is not well taken. The failure to make, file, and publish the certificate in question is matter of defense, to be set up by defendants, and, not having been so taken, is waived. (Phillips v. Goldtree, 74 Cal. 151 ; Garloch v. Gagnacci, 88 Cal. 600 .)

The judgment appealed from should be affirmed.

Vancliee, C., and Haynes, 0., concurred.

For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.

De Haven, J., McFarland, J., Fitzgerald, J.

Cases cited