Lee v. Orr

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.