Opinion
Fall Sessions, 1837.
CERTIORARI to Justice Wiley.
Booth, for plaintiff in error.
Wales, for defendants.
Record. William Rowan Co. vs. Joseph Roberts, Esq. Summons issued 15th of June, 1836, returnable June 21st, 1836. Cause of action. For bill of store goods, (stating items,) $13 60. Summons returned "served personally," and service proved. June 21st, 1836, the defendant not appearing, and the constable being solemnly sworn as to the service of the summons, judgment for the plaintiff for the sum of $13 60, with costs of suit, c.
Exceptions. 1st, Because it appears that the cause of action in this and the following case between the same parties, was a book account against the said J. Roberts, amounting to $33 86, for which entire sum but one action ought to have been brought; whereas, the justice has split the cause of action. 2d, Because the suit below is erroneous in not setting forth the names of the plaintiffs; the action being in the name of William Rowan Co., whereas the names of the individuals composing the said firm ought to have been stated. 3d, To the service of the summons and return. 4th, Because the justice entered judgment by default without having first heard the proofs and allegations of the plaintiff.
The Court said that the 2d and 4th exceptions were both fatal. The principle decided in Colesberry vs. Stoops (1 Harr. 448,) was, that where it appeared from the record that the proof and allegations were heard by the justice, it would be sufficient without his so stating. Here the justice sets out the cause of action, being an account, and which is the allegation of the plaintiff; but it does not appear that it was in any manner proved, even by the production and proof of his books. But the other ground is also fatal. A firm cannot sue without setting out its members, and it is a good objection on the general issue, and need not be pleaded in abatement.
Judgment reversed.