HILL v. PAIGE MOTOR CO.

HILL v. PAIGE MOTOR CO.
1926 OK 954
253 P. 97
123 Okla. 254
Case Number: 17044
Decided: 11/30/1926
Supreme Court of Oklahoma

HILL
v.
PAIGE MOTOR CO.

Syllabus

¶0 1. Partnership--Fictitious Name--Right to Sue--Statute. Our statute, section 8141, C. O. S. 1921, provides that a partnership doing business under a fictitious name shall file a certificate with the clerk of the district court setting forth the names and addresses of all the partners, and shall also publish said certificate in some newspaper in the county where such business is conducted, and cannot maintain a suit in the name of the partnership until said law is complied with; and where the question is properly raised and proven, it has the effect of abating the suit until the statute is complied with, and the burden of proving that the statute has not been complied with is on the party who raises the question.
2. Same--Objection by Defendant--Lack of Proof. Where the defendant alleges in his answer that plaintiff is a partnership doing business under a fictitious name, and had not complied with section 8141, but offers no proof of said allegation, the law will presume that plaintiff had complied with said statute.

H. A. Hicks, for plaintiff in error.
E. W. Schenk, for defendant in error.

MAXEY, C.

¶1 This action was begun before a justice of the peace of Carter county, by plaintiff filing a bill of particulars, to which defendant filed answer. The answer is that plaintiff, being a partnership, was doing business in violation of section 8141, C. O. S. 1921, which provides that a partnership doing business under a fictitious name shall file with the clerk of the district court of the county in which it is doing business a certificate, stating the names of the partners, and publish same, as provided in said section. No reply was filed to the answer, but the case was tried on the bill of particulars and the answer, and the justice of the peace rendered judgment for the plaintiff, Paige Motor Company. An appeal was taken to the district court, and there tried on the same pleadings as in the justice of the peace court, and again resulted in a verdict for the plaintiff, and defendant has appealed to this court.

¶2 The plaintiff in error relies on three propositions for reversal by this court: First, the error of the district court in not sustaining the demurrer of defendant to the evidence of plaintiff. Second, the judgment is contrary to law and the evidence. Third, retax cost of stenographer for case-made.

¶3 The first and second propositions are argued together, and it is contended that the plaintiff, Paige Motor Company, being a partnership, doing business under a fictitious name, and not having complied with the law of this state, cannot maintain this action. Counsel claims that this question is a jurisdictional one, but we do not think so. The certificate provided for in section 8141, supra, can be filed at any time, and if the question had been properly raised in the answer and by proof by plaintiff, it would have only had the effect of abating the suit until the plaintiff could comply with section 8141, supra, as provided in section 8143, C. O. S. 1921.

¶4 The trouble with the defendant's defense is that he filed an answer alleging that the plaintiff was a partnership doing business under a fictitious name and had not complied with the section of the statute above cited, but he did not offer any testimony to prove said allegation, and there is no evidence in the record to sustain said allegation. Counsel for defendant claims that when he alleged it in his answer, as new matter, the plaintiff must reply to it, and either admit or deny such facts, but that is not the law. No pleadings are necessary in a justice court, and when the case is appealed to the district court, it is tried de novo. If the defendant deemed the question of a failure to comply with the statute as material, he should have introduced evidence to prove said allegation. A reply was not necessary, and could be waived, if it was necessary. The contention between the attorneys for the respective parties is that counsel for defendant claims that the burden or showing a compliance with the statute by the plaintiff was on the plaintiff and the plaintiff contends that the burden was on the defendant, and he not having offered any testimony on that subject, the answer must be taken as not true. This question has been passed on by this court in a number of cases, but we will only cite the very recent case of General American Oil Co. v. Wagoner Oil & Gas Co., 118 Okla. 183, 247 P. 99. In the third paragraph of the syllabus the court says: