General
NELSON & DOBLE v. HIGHLAND
13 Cal. 74·Supreme Court of California·1859·CA
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Opinion
NELSON & DOBLE v. HIGHLAND.
It is no ground of demurrer to a complaint, that the Christian name of one of the plaintiffs does not appear.
Appeal from the First District.
Complaint avers that “ Thomas Nelson and-Doble, whose
Christian name is unknown, partners doing business under the firm, name, and style, of Nelson & Doble,” etc.
Demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action, and that there is a defect of parties plaintiff in this—that the Christian name of plaintiff, Doble, is not given.
Demurrer sustained; plaintiffs refuse to amend; judgment final, dismissing the complaint; plaintiffs appeal.
George Cadwalader, for Appellant.
The demurrer should have been overruled, because the plaintiffs were really the firm of Nelson & Doble. The balance of the averment may be rejected as surplusage. (17 Pick. 87; 14 Pick. 87; 14 Pick. 156; 12 Mass. 434.)
Demurrer was not the remedy. A motion to render the corn-plaint more certain, or a plea in abatement would have been proper. (Barnes v. Perine, 9 Barb. 202.)
A mistake in the name of plaintiff is not ground of nonsuit. (Brashear v. Stothard, 4 Bibb. 265; 1 Monroe, 175; Bacon Ab. Title “ Misnomer.”)
P. L. Edwards, for Respondent.
1. The demurrer of the Respondent was rightfully sustained. Plaintiffs are bound to know their own names, and to sue by them. (See Revis v. Lamme & Brother, 2 Mo. 168.)
2. The Appellants having refused to amend, and rested on their complaint and the demurrer, cannot now complain that the Court rendered final judgment.
[MAJORITY — Baldwin, J. delivered the opinion of the Court]
Baldwin, J. delivered the opinion of the Court
Terry, C. J. concurring.
We do not think it was a good ground of demurrer that the Christian name of one of the plaintiffs does not appear in the record. We cannot judicially know that one of the plaintiffs had either a Christian or heathen name, or that it is necessarily untrue that he has forgotten it if he had.
Judgment reversed and cause remanded.