Nicholson v. Auburn Gold Mining & Milling Co.
Before: Chipman
Synopsis
Action bt Partnership—Piling and Publication op Certthcate— Completion Prior to Plea in Abatement.—Matter in abatement of an action by a partnership must exist at the time of filing the plea, and where the certificate of partnership showing the names of the persons interested as partners ivas duly filed, and the publication thereof was fully completed before the filing of the plea in abatement, the plea cannot be sustained. The statute was sufficiently complied with, though the publication was not completed before the commencement of the action.
Id.—Construction op Statute—Prohibition to “Maintain Action.” In the provision of the statute that “persons doing business as partners contrary to the provision of this article shall not maintain any action . . . until they have first filed the certificate, and made the publication herein required,” the verb “maintain” does not mean the same as “to commence” the action, but means to support what already exists.
CHIPMAN, P. J.
Action for the value of certain goods, wares and merchandise. A general demurrer was overruled and defendant answered, averring, among other things, that plaintiffs should not be permitted to maintain this action because they are a partnership transacting business in this state under a designation not showing the names of the persons interested as partners, as required by sections 2466 and 2468 of the Civil Code. The complaint was filed November 7, 1905. The
[548]
first publication of the certificate of copartnership was on November 4, 1905, and was repeated thereafter November 11th, 18th, 25th, and December 2d. The certificate was filed with the county clerk November 7, 1905. The answer, pleading the statute in abatement, was filed December 19, 1905. Plaintiff had judgment, from which and from the order denying its motion for a new trial defendant .appeals.
The statute reads as follows: “Persons doing business as partners contrary to the provisions of this article shall not maintain any action . .. until they have first filed the certificate and made the publication herein required.” The failure to file the required certificate is matter of defense and must be set up .in the answer by way of abatement.
(Byers
v.
Bourret,
64 Cal. 73, [28 Pac. 61];
Sweeney
v.
Stanford,
67 Cal. 635, [8 Pac. 444];
Carlock
v.
Cagnacci,
88 Cal. 600, [26 Pac. 597] ;
Cook
v.
Fowler,
101 Cal. 89, [35 Pac. 431].) In the first of the above cases it was also said: “The commencement of the action is a part of maintaining it. In this case it was incumbent on the plaintiff to have shown that the certificate has been filed, and published once a week for four successive weeks before the commencement of the action.” The facts in that case were that the trial of the issue was on December 15,1882, and on the same day findings were filed and a judgment rendered for plaintiffs, but that the certificate of partnership was not filed with the clerk until December 7, 1882, and the publication thereof had been made once only before the trial. A' similar provision to that in section 2468 is found in section 299 of the same code, which provides that “any corporation failing to comply with the provisions of this section
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