Lee v. Orr
Before: Myrick
Synopsis
Pleading—Designation oe Plaintiffs as Partners—Certificate of Partnership — Immaterial Issue — Finding.—Where the title of an action designates the plaintiffs as partners doing business under a fictitious name, but it does not appear either by the complaint or answer that the cause of action of the plaintiffs is upon or on account of any contract made or transaction had by them in their partnership name, an allegation in the answer that the plaintiffs had not complied with the law requiring the filing and publishing of a notice of the partnership is immaterial, and no finding thereon is necessary.
Fraudulent Judgment—Action to Set aside—Execution—Issuance and Return of.—In an-action by a junior judgment creditor to set aside a prior judgment and execution sale of the property of the debtor on the ground of fraud, the complaint need not allege that an execution had been issued and returned unsatisfied, where it is averred that the judgment debtor has not and never had any property except that sold under the fraudulent judgment.
Myrick, J. One of the defendants herein, H. W. Orr, obtained a judgment against the Hungarian Hill Gravel Mining Company, and by virtue of an execution issued thereon certain real estate was sold to said Orr. The plaintiffs herein obtained a junior judgment against the same company. This action was brought to set aside the former judgment and sale on the ground of fraud, and to restrain the execution of a sheriff’s deed.
.1. The plaintiffs in their complaint in this action entitled the suit, “ C. Lee, P. 0. Lee, and C. J. Lee, partners doing business under the firm name of C. Lee & Sons vs.,” etc. The answer presented the issue that it [399]nowhere appeared in the complaint that plaintiffs had complied with the law requiring the filing and publishing of a notice of partnership. (Civil Code, secs. 2466, 2468.) The court below made no finding on this subject, and the omission is urged as ground for reversal.
It nowhere appears in the complaint, nor is it averred in the answer, that the cause of plaintiffs’ action was upon or on account of any contract made or transaction had in the partnership name of the plaintiffs. The part of the title of the action relating to the plaintiffs as partners may be disregarded as surplusage, leaving the complaint as stating in effect that the judgment recovered by plaintiffs was recovered in their capacity of co-plaintiffs (not as partners).
2. The complaint alleged that the mining company had not and never had any property or assets whatever, except the property sold, as before stated, to the defendant Orr. With that allegation in the complaint, it was not necessary to allege in addition that an execution had been issued and returned unsatisfied. The finding of the court upon this subject is sufficient.
Judgment affirmed.
McKinstby, J., and Ross, J., concurred.
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