Weisz & Mall Co. v. Davey
Nebraska Supreme Court
Error to the district court for Dakota county. Tried below before Norris, J. While it is true that, under section 24 of the Code, the action should have been brought in the individual names of the partners, yet the mistake was one of form only, and the rights of defendants were in noway prejudiced. Moreover, a plea in abatement, not a motion to dismiss, is the proper remedy.
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Error to the district court for Dakota county. Tried below before Norris, J. While it is true that, under section 24 of the Code, the action should have been brought in the individual names of the partners, yet the mistake was one of form only, and the rights of defendants were in noway prejudiced. Moreover, a plea in abatement, not a motion to dismiss, is the proper remedy. (Smelt v. Knapp, 16 Neb., 53; Oilman v'. Cosgrove, 22 Cal., 357; Hite v, Hv/nton, 20 Mo., 286; Fowler v. Williams, 62 Id., 403; Haskins v. Aleott, 13 Ohio St., 210; Porter v. Cresson, 10 S. & R. [Pa.], 257; Downer v.…
1Opinion of the Court
Cobb, Ch. J.
The plaintiff in error brought suit under the name of Weisz & Mall Co., March 25, 1889, before E. B. Wilson, county judge, to recover the balance of its account as commission merchants, of $80, against Davey & Barry, defendants.
The defendants appeared J une 17 following and “ moved the court to dismiss the action for the reason that the plaintiff had not set out the names of the partners in the plaintiff’s company.”
*568This motion was overruled, and judgment rendered for the plaintiff.
The defendants removed the proceedings to the district •court by petition in error, and on July 10,…
2Cited by1 opinion
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