
    Czatt v. Case et al.
    
      Partnership name — Containing surnames of members of firm — Not a fictitious name — Construction of statute.
    
    Where the firm name in which a copartnership transacts business in the state contains the surnames of all the members of the firm, and none other, it is not “ a fictitious name or designation not showing the names of the persons” who constitute the firm within the meaning of the statute requiring a certificate to be filed with the clerk showing the full names of such persons.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Harrison County.
    
      M. J. McCoy and P. W. Boggs, for plaintiff in error.
    
      Albert O. Barnes and John O. Dickerson, for defendants in error.
   By The Court :

The defendants are co-partners doing a mercantile business in this state under the firm name and style of Case & Taylor. The co-partnership is composed of Lucy A. Case and David L. Taylor. An action was commenced by them in said firm name before a justice of the peace of the county where they recovered a judgment, although their right to do so was challenged by motion because the co-partnership designation in which they sued did not contain the full Christian as well as the surnames of the members of the firm. The judgment so recovered was affirmed in the court of common pleas,, and its judgment was in turn affirmed in the circuit court. The co-partnership designation under which they transacted the business and brought the suit was not a “fictitious name or designation not showing the names of the persons” who constituted the firm within the provisions of the act (92 O. L., page 25) requiring a certificate to be filed with the clerk of the court of common pleas of the county containing the full names of all the members of such co-partnership and their places of residence.

Judgment affirmed.

Spear, J.,

dissenting.

I find myself unable to assent to the foregoing holding. Whether or not the name of the firm “Case & Taylor” is a designation showing the names of the persons interested as partners in such business is the question. Is the giving of the surnames only sufficient, or must there be a designation of the full names of the partners? It seems to me that the words of the statute settle it. They are that a partnership transacting business under a fictitious name, or a designation not showing the names of the partners, must file, etc., a certificate “stating the names in full of all the members of such partnership and their places of residence.” Now, the surname is, ordinarily, only a part of a name, not all of it, and when the giving of a name is required the natural import of the term calls for the full name, and this is distinctly expressed in the last clause of the section. The holding of the majority amends the statute. The legislature may do this; the court may not.

I am aware that two reported cases in the court of common pleas of the state follow the holding in Pendleton v. Cline, 85 Cal., 142, in construing a similar statute, that where the firm name embraces the surnames of the partners no certificate is necessary, but I am not aware that the repetition of an erroneous conclusion in any way strengthens it.  