Morgridge v. Stoeffer
North Dakota Supreme Court
Appeal from District -Court, Ramsey -county; Cowan, J. Action by W. J. Morgridge and F. E. Merrick against Jacob Stoeffer. Judgment for defendant, and plaintiffs appeal. Where a defendant fails to .plead by demurrer or answer the want of legal capacity to.sue, he waives it. McFall v. Buckeye Grangers’ Warehouse Assn, et al., 122 Cal. 468, 55 Pac. 253, 68 Am.
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Appeal from District -Court, Ramsey -county; Cowan, J. Action by W. J. Morgridge and F. E. Merrick against Jacob Stoeffer. Judgment for defendant, and plaintiffs appeal. Where a defendant fails to .plead by demurrer or answer the want of legal capacity to.sue, he waives it. McFall v. Buckeye Grangers’ Warehouse Assn, et al., 122 Cal. 468, 55 Pac. 253, 68 Am. St. Rep. 47. Defendant could not take advantage of the defect — suing in partnership name — by motion to dismiss upon a special appearance; it must be done by plea, and if amendment is offered it should be granted. 1 Wait’s Pr. 491;…
1Opinion of the CourtEngerud, J.
The plaintiffs, M. J. Mo-rgridge and F. E. Merrick, who are partners doing business in the firm name of Morgridge and Merrick, commenced this -a-ction in justice court. The partnership name only appeared1 in- the summons-, without -showing the Christian names of each of the two- partners. The defendant appeared specially on th-e return- day of the summons, and moved to dismiss the action on the ground that the summons failed to set forth the names of the individuals -composing the plaintiff firm. The justice denied the motion. The -defendant excepted to the ruling, and, so far as the record-…
2Cases cited2 opinions
- Bank of Havana v. . MageeNew York Court of Appeals · 1859
- Barber v. SmithMichigan Supreme Court · 1879
3Cited by11 opinions
- Springfield Fire & Marine Ins. v. Gish, Brook & Co.Supreme Court of Oklahoma · 1909
- State v. BrownNorth Dakota Supreme Court · 1905
- Leach v. NelsonNorth Dakota Supreme Court · 1922
- Holler v. AmodtNorth Dakota Supreme Court · 1915
- Kingman Mills v. FurnerWest Virginia Supreme Court · 1921
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