Opinion of the
J. H. McCartey et al. v. Kittrell & Purnell
Judgment. Form and entry. Names of parties.
A judgment is operative against all of the parties to the action even where the names are incorrectly given in the judgment, or are altogether omitted from it; and who are parties is to be determined from all of the pleadings, process, and proceedings in the case.
Error to the Circuit Court of Choctaw County.
Hon. William Cothran, Judge
A statement of the case appears in the opinion of the court.
1. It was error in the Circuit Court to proceed to judgment, because the action was instituted in the partnership name of the plaintiffs. Parties cannot sue or be sued in their partnership name. Blackwell v. Reid & Co., 41 Miss. 102.
When the action is brought in the Circuit Court, the objection may be raised by the defendant on demurrer to the plaintiff's declaration. But in a justice's court the plaintiff's claim is made by "lodging with the justice the evidence of debt," and having a summons issued. The pleadings on the part of the defendant, except when he has a claim or demand against the plaintiff, are oral, and he can plead payment, statue of limitations, or any other matter orally, and make any defense of law or fact without written pleadings. Theefore the failure of the plaintiffs in error to file a written demurrer does not prevent this court from reversing the judgment. A defendant in a justice's court, or in the Circuit Court on appeal, is not required to make his demurrer matter of record, and is nt affected by section 622 of the Code of 1871.
2. The judgment is irregular and voidable because it does not describe the parties plaintiff with sufficient certainty. Rhea v. Rawlings, 3 Cranch C. Ct. 256. In that case a judgment in favor of "Rawlings & Son" was held to be bad. See, also Barney v. The Coporation, 1 Cranch C. Ct. 248; Ordinary v. McClure, 1 Bailey, 7; Stowers v. Milledge, 1 Iowa, 150; Barrett v. Gornigan, 16 Iowa, 47; Church v. Crossman, 41 Iowa, 373; Tornbeckbee Bank v. Strong's Executors, 1 Stew. & P. 187.
A judgment cannot be pleaded as a bar to a second recovery unless there be an identity of parties. Freem. on Judg., sec. 252. There can be no estopped by judgment unless both parties can be bound thereby. Its operation must be mutual, Ib., sec. 159. If the defendants below had recovered judgment on their off-set against "Kittrell & Purnell," the latter would not have been bound thereby, and the plaintiffs below cannot be benefited by any judgment which would not have bound them if it had gone against them.
For these errors the judgment should be reversed.
R. F. Holloway, for the defendant in error, submitted the case, but filed not brief.
Chalmers, J., delivered the opinion of the court.
The only error assigned is that in the judgment of the Circuit court there was a failure to recite the names of the individual members composing of the firm of Kitrell & Purnell, in whose favor the judgment was rendered. The case originated in the Magistrate's Court, and there were no written pleadings; but in the judgment of the Magistrate's Court the infividual names of the members of the firm were given. They were given, also, in the affidavit for appeal in the appeal bond, and in the magistrate's certificate to the transcript sent up to the Circuit Court. There was no objection made in the Circuit Court, nor any suggestions that the names thus given were not the true names of the plaintiffs. A judgment isf operative for or against all who were really parties to the suit, though their names be incorrectly given or wholly omitted from it. Who are parties is to be determined by all the pleadings, process, and proceedings in the case. Wilson v. Nance, 11 Humph. 189.