Cohen v. Levy

California Court of Appeal Sep 26, 1930 No. Docket No. 7144.Published

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Holding. The court reversed the judgment because the plaintiffs failed to provide evidence that they complied with statutory requirements for filing and publishing a certificate of partnership under a fictitious name. The court restricted the scope of the retrial to this single issue, provided the plaintiffs pay the defendants' costs of appeal.

Issues

Whether the plaintiffs failed to prove compliance with Civil Code sections 2466 and 2468 regarding the filing and publication of a certificate of partnership.
Whether the appellate court should restrict the scope of a retrial to a single issue or take additional testimony under section 956a of the Code of Civil Procedure.

Disposition. reversed

Quotations verified verbatim against the opinion

“until such certificate is filed and published the persons doing business under the fictitious name are precluded from maintaining any action upon or on account of any transaction had under the fictitious name.”

“there is no evidence whatever in the record from which it may be reasonably inferred that said certificate was ever published as required by said code sections.”

“It is ordered, therefore, that the judgment be reversed and that the retrial be restricted to the single issue of whether or not plaintiffs have complied with sections 2466 and 2468 of the Civil Code”

THE COURT.

Plaintiffs brought this action as copartners to collect a balance of $1335.72. claimed to be due for the sale and installation of store fixtures. Defendants denied the alleged indebtedness and set up a counterclaim for damages in the sum of $1500, alleging that said fixtures had not been installed in conformity with the written contract theretofore entered into between the parties, nor in a workmanlike manner. After deducting the sum of $335.72 as damages from plaintiffs’ demand, the trial court entered judgment in their favor for $1,000, from which judgment defendants appeal, contending as the single ground for reversal that the evidence is legally insufficient to establish the fact that prior to the commencement of the action plaintiffs filed and published a certificate of partnership in conformity with the requirements of sections 2466 and 2468 of the Civil Code. We are of the opinion that this contention must be sustained.

The partnership was formed in 1920 under the fictitious name of San Francisco Show Case Co. Its principal place of business was in San Francisco. At that time section 2466 of the Civil Code required every partnership operating under a fictitious name to file with the county clerk of the county wherein its principal place of business was located a certificate stating the names in full and the places of residence of all the members of such partnership, and to publish such certificate for four successive weeks in a newspaper in the same county, etc.; and section 2468 of the same code declares that until such certificate is filed and published the persons doing business under the fictitious name are precluded from maintaining any action upon or on account of any transaction had under the fictitious name.

[526]

Furthermore, it has been held that where the complaint in an action instituted by persons operating under such a partnership alleges compliance with the provisions of said code sections and such allegations are denied in the answer, an issue on that point is thereby tendered without interposing a plea in abatement; and that thereupon the burden is cast upon the plaintiffs to prove the affirmative of the issue, or upon their failure so to do, a judgment in their favor will be reversed

(Rudneck

Cohen v. Levy

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THE COURT.

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