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having a president or treasurer, and consisting of seven or more persons, is within the statue allowing associations to sue or be sued in the officer's name. 82
But where the firm, whether suing or sued, is a special partnership under the statute, only the general partners should be named, 83 unless the action seeks to charge the special partner, or is a controversy between the partners. 84
And if the plaintiff cannot ascertain the names of the partners he may sue them in the firm name,85 or by fictitious names, 88 in either case alleging the inability in his complaint, and amending after he discovers the fact.
If the parnership be a limited or a special one, under the statute, an action is brought and conducted by and against the general partners in the same manner as if there were no special partners. 87
A dormant partner is not a necessary co-plaintiff in an action on a partnership contract,88 and a dormant partner not known to be such by the plaintiff when he contracted with the firm, is not a necessary co-defendant with the other partners. 89
10. — corporation.] -A corporation should be designated in a judicial proceeding by its technical name of incorporation. It is not enough to name its trustees and describe them as such, or indicate that they sue or are sued as such.91 In some few cases, however, the legal title of the corporation is “ The Trustees of," etc.
It is not safe to assume that a “company,” so called, is a corporation; but the actual fact should be ascertained. A summons treating a firm as a corporation is amendable by substituting persons found to be a firm under that name, if there be no such corporation.92 But not if actually served on such a corporation, *3 for this is more than a change of the description or capacity of person, it is a change of the legal personality itself.
82 N. Y. Code Civ. Pro., 8 1919.
83 N. Y. Partnership Law (L. 1897, chap. 420), § 38; Van Alstyne v. Cook, 25 N. Y. 489.
84 Walkenshaw v. Perzel, 4 Robt. 426, 32 How. Pr. 233. 85 Thompson v. Kessel, 30 N. Y. 383.
In Gumbel v. Pitken, 113 U. S. 545, firm name in writ of error was held sufficient where the individual names appeared in the record, distinguishing the case of The Protector, 11 Wall. 82.
86 See paragraph 2, p. 611 (above).
88 Lewis v. Greider, 51 N. Y. 231; McCabe v. Goodfellow, 15 N. Y. Supp. 377. 21 Civ. Pro. 65.
89 Clarkson v. Carter, 3 Cow. 84.
90 McGary v. People, 45 N. Y. 153; Matter of U. S. Mortgage Co., 83 Hun, 572, 32 N. Y. Supp. 11 (a corporation cannot obtain another legal name by user). If the corporation has contracted under a different name, it should he sued in its legal name and will be estonped from denying that the assumed name was not appropriate to bind it. See Hascall v. Life Assoc. of Am., 5 Hun, 151; aff'd, 66 N. Y. 616.
91 See Lucas v. Johnson, 8 Barb, 244.
Variances in the name of a corporation which do not raise any question of identity are amendable, 94 and if slight, may be dis
11. — association or joint-stock company.] — The statute relating to joint-stock companies and some other associations allows actions to be brought by or against them by naming an officer instead of joining the members,96 in which case however, judgment is to be enforced against the associate party before an action can be brought against the members. Under such statute the association is deemed the party, although the officer designated by statute be named on the record. o7
12. Infants.] — An infant plaintiff should be designated as, “ James Fox, an infant, by Robert Fox, his guardian ad litem, plaintiff.” The infant is the party plaintiff.
92 Munzinger v. Courier Co., 82 Hun, 575, 31 N. Y. Supp. 737, 24 Civ. Pro. 175, 1 Anno. Cas. 32 (amendment of summons allowed from “ The Courier Company” to “ G. B. as President of the Courier Company," and complaint amended by substituting an allegation that defendant was a voluntary association for an allegation that it was a corporation). 8, P., Evoy v. Exp. Aid Soc., 21 N. Y. Supp. 641.
93 Milk Pan Association v. Remington Agric. Works, 89 N. Y. 22, rer'g 25 Hun, 475. So, an amendment substituting a corporation for an individual named as defendant cannot be permitted, even though it was alleged and sup. posed that the individual was doing business under the name of the company. Licausi v. Ashworth, 78 App. Div. 486, 79 N. Y. Supp. 633.
The rule as to amending is more liberal in England and in some of the United States. See, for instance, Farrier v. Schroeder, 40 N. J. L. 601; abstr. S. C., 8 Repr. 626.
94 Bank of Havana v. Magee, 20 N. Y. 355; Reilly v. World Pub. Co., 15 N. Y. St. Rep. 390.
93 See Germantown Farmers' Mut. Ins. Co. v. Dhein, 57 Wisc. 521, 15 N. W. Rep. 840.
96 N. Y. Code Civ. Pro., § 1919, allows the president or treasurer of an unin. corporated association of seven or more persons to sue and be sued for most purposes, instead of joining all the associates. Unless the plaintiff avails himself of this permission of the statute, the members of the association must all be named. See Messler v. Schwarzkopf, 35 Misc. 72, 71 N. Y. Supp. 242; Hanke 1". Cigarmakers' Union, 27 Misc. 529, 58 N. Y. Supp. 412.
97 An attachment, however, should be issued against the association, and not against the defendant. Mertz v. Fenouillet, 13 App. Div. 222, 43 N. Y. Supp. 217.
An infant defendant is named in the summons precisely as though an adult; when a guardian ad litem has been appointed for him the title will be changed to read as in the case of the infant plaintiff.
13. Mode of objecting to error in name.] — If a party, plaintiff or defendant,99 sues or is sued by a wrong name (not stated : to be fictitious because the true name is unknown), the proper mode of objecting is to move,' or plead in abatement,” rather than to lie by and resist the enforcement of the judgment, unless the error be such as to deprive the process of its character of legal notice.
14. Defects of summons.] — Defects in summons will not defeat jurisdiction if it is clear that the party was not or could not have been misled.* The statute prescribing the requisites of the paper is to be read in the light of its object to give clear and adequate notice of the existence of the action, and information as to the time and mode of resistance; and the rule now generally ap- . plied is that a defect which does not defeat this purpose may be disregarded or amended."
98 Farrington v. Muchmore, 52 App. Div. 247, 65 N. Y. Supp. 432; Watson v. Watson, 47 Mich. 427, 11 N. W. Rep. 227.
99 Bloomfield R. R. Co. v. Burress, 82 Ind. 83.
1 If the party be actually before the court, misnomer is waived if not objected to. Waterbury v. Mather, 16 Wend. 611; Bank of Havana v. Magee, 20 N. Y. 355. And the only remedy available to the defendant in case of misnomer of the plaintiff, is to plead it in his answer. Farrington v. Muchimore, 52 App. Div. 247, 65 N. Y. Supp. 432. An error in the spelling of plaintiff's name in the summons and complaint may be corrected on the trial, and is a mere formal amendment. Mitterwalner v. Supreme Lodge, 109 App. Div. 70, 95 N. Y. Supp. 1090. See Smith v. Jackson, 20 Abb. N. C. 422, 12. Civ. Pro. 428, aff'd, i N. Y. Supp. 13 (another person than intended defendant served with summons may either disregard or move to set aside service).
2 N. Y. Code Civ. Pro., § 1777, as to corporations. 3 See, for instances, People ex rel. Liatto v. Dunn, 27 Misc. 71, 58 N. Y. Supp. 147; Stuyvesant v. Weil, 167 N. Y. 421; Mitterwallner v. Supreme Lodge, 109 App. Div. 70, 95 N. Y. Supp. 1090; Ford v. Doyle, 37 Cal. 346.
4 Stuyvesant v. Weil, 167 N. Y. 421, 3 A summons with a clause giving notice that on default plaintiff will apply to the court for relief, instead of that he will enter judgment, does not prevent entering judgment with the clerk, on default, if the complaint was served with the summons.
Heinrick r. Englund (Minn. 1885), 26 N. W. Rep. 122. Here the court say: "The form of notice in the summons will confer no right upon a plaintiff to enter judgment without application to the court, when application is necessary by the form of the complaint; and, by analogy of reasoning, we think that when both summons and complaint are served, a plaintiff is entitled to judg
15. Waiver.]-A defendant who is sui juris waives all defects, either in the summons or the service, by a general appearance.
ment without application to the court, notwithstanding the form of notice in the summons, when such application is unnecessary under the form of the complaint. But even if the plaintiff in this case should regularly have applied to the court for judgment, his failure to do so was an irregularity which did not prejudice defendant, for the reason that under the complaint plaintiffs would have been entitled to an order for judgment as a matter of course. Libby v. Mikelborg, 28 Minn. 38, 8 N. W. Rep. 903."
So the omission of the words “judgment by," before “default,” held not fatal. Kimball c. Castagnio, 8 Colo. 525, 9 Pac. Rep. 488.
But a notice to the eilect that the plaintiff would take judgment on de. fendant's failure to appear, without any notice that plaintiff would apply to the court for relief, was held fatally defective in Atchison, T. & S. F. R Co. v. Nicholls, 8 Colo. 188, 6 Pac. Rep. 512.
Under a statute providing that the summons should embody a statement of “the cause and general nature of the action," a statement that the action was to recover for “ certain damages, by reason of the negligent operation of said (defendant's) road, etc.," held insufficient because it failed to indicate whether as carrier or otherwise. Atchison, T. & S. F. R. Co. v. Nicholls, 8 Colo, 188, 6 Pac. Rep. 512.
A mistake in process issued on December 28, requiring defendant to appear on the second “Monday" of December next instead of "April," was disregarded in Williams v. Buchanan (Ga.), 1 Ga. L. Rep. 63.
Under the Iowa statute, a summons that notified the defendant to appear at the next term, but without explicitly naming the term, was held sufficient in Farmers' Ins. Co. v. Highsmith, 44 Iowa, 330.
Under the California statute, a notice issued out of the Superior Court of San Francisco, held not defective in omitting to notify the defendant to appear within 20 days, such notice being served out of the county, but within the district in which the action was brought, such court being one of superior jurisdiction. McCauley 1. Fulton, 44 Cal. 355.
A misdating was held not to vitiate in Smith v. Walker, 6 S. C. 169.
But where the notice (summons), as put into the hands of the oflicer, had the appearance day left blank, held that the action was not so commenced as to prevent the running of the statute of limitations, Phinney r. Donahue, 67 Iowa, 192, 25 N. W. Rep. 126.
A notice that failed to conform to the statutory requirement, that the hour of appearance should be specified, was held fatally defective in Hodges t. Brett, 4 G. Greene (Iowa), 345.
A copy summons failing to contain the name of plaintiff's attorney may be amended where the defendant compared it with the original, and was not misled or prejudiced. Hull v. Canan. Elec. Light Co., 55 App. Div. 419, 66 N. Y. Supp. 865.
6 See Chapter V of this volume.
FORM No. 365.
Summons. Name of court, and, if in the Supreme Court, the name of county
in which plaintiff desires trial.?
[Full names of alle the] plaintiffs
[Full names of all the] defendants
[In a matrimonial acsindicating unknown defendants, if | tion, where the comany, thus: John S. Robinson, the name plaint is not personally “ John” being fictitious, the first name served upon defendant of said defendant being unknown to within the State, state plaintiff, said defendant being a part character of the action, ner of the defendant Robert Fox in as:) Action for a dithe firm of Robert Fox & Co.; Patrick vorce [or, separationScully, if living, and his wife, if any,
or, to annul a marwhose name is unknown to plaintiff, riage. 79 and the widow, devisees, heirs at law, and next of kin of said Patrick Scully, if deceased, who are unknown to plaintifft'],
To the above-named defendant [s] : You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff's attorney [or if he appear in person, on
7 N. Y. Code Civ. Pro., § 417, re. attorney moves promptly to correct quires a summons in the Supreme the error. Goldstein v. Marx, 73 App. Court to name the county.
Div. 545, 77 N. Y. Supp. 956, 11 Anno. The words “ city and county of Cas. 313. New York" in the caption, in an Omission to name the county is an action brought in the Supreme Court, irregularity which the court may are a sufficient designation of the allow to be amended, even by way of county in which the plaintiff desires defeating a motion to set aside the the trial. Ward v. Sands, 10 Abb. summons because of the defect. WalN. C. 60.
lace v. Dimmick, 24 Hun, 635. In case of difference, the county 8 Name all the parties. N. Y. Code nained in the complaint will prevail Civ. Pro., § 417. Lyman v. Milton, over the county named in the sum 44 Cal. 630. mons. Fisher v. Ogden, 12 App. Div.
9 N. Y, Code Civ. Pro., $ 1774. See, 602, 43 N. Y. Supp. 111; Tolhurst v. also, Form 367, when action is on a Howard, 94 App. Div. 439, 88 N. Y. penalty. Supp. 235. A mere inadvertent error 10 Sustained by Wheeler v. Scully, in stating a wrong county in the com 50 N. Y. 607; see paragraphs 7 and 8, plaint will not affect, if plaintiff's pp. 625, 626, supra.