Schwarz & Gottlieb, Inc. v. Marcuse

SLOSS, J.

I agree with the views expressed by the Chief 'Justice relative to the claim of Pope & Talbot.

I wish to express, in addition, my dissent from the court’s decision on the claim of P. H. Murphy & Son.- In my judgment, the firm name “P. H. Murphy & Son” showed “the names of the persons interested as partners,” within the fair meaning of section 2466 of the Civil Code. I see no good reason for giving the section the strict interpretation adopted by the court. Anyone dealing with a firm called “P. H. Murphy & Son” would naturally assume (as was the fact here) that the firm was composed of two men named Murphy, P. H. Murphy being the father, and the other member his son. This assumption would be correct in all but very unusual cases. The partnership designation, therefore, disclosed the surnames of the partners, and this, we have held, is sufficient.

(Pendleton

v.

Cline,

85 Cal. 142, [24 Pac.

659]; McLean

v.

Crow,

88 Cal. 644, 26 Pac. 596].)

Rehearing denied.

ANGELLOTTI, C. J.

I concur in the opinion and judgment, in so far as the affirmance as to all the appellants except Pope & Talbot is concerned.

I dissent from that portion of our judgment which reverses the judgment of the superior court as to appellant Pope & Talbot. It seems clear to me that, upon the facts stated in the opinion as to the claim of such appellant, the superior court correctly held that the cause of action for enforcement of the lien was barred by the provision of section 1190 of the Code of Civil Procedure. The lien of that claimant was fully perfected by the first filing, that of November 9, 1912, and, by express provision of the section, the property subject thereto was absolutely freed therefrom by the failure to commence enforcement proceedings in the proper court within ninety days thereafter. That our statute, as held in