Proprietors of the Mexican Mill v. Yellow Jacket Silver Mining Co. , 4 Nev. 40 ( 1868 )

By the Court,

JOHNSON, J.

An appeal is sought here from an order of a District Court refusing an injunction, pending other proceedings, in what counsel for appellant is pleased to denominate a Civil Action.

These proceedings originated with a complaint in which plaintiffs are styled thus : “ The plaintiffs, the' proprietors of the Mexican Mill, a copartnership, doing business in that name in the County of Ormsby, State of Nevada.”

The transcript does not show that any objection was taken to this pleading in the lower Court, and hence we infer that no such question' arose there. But preliminary to considering the merits, respondent submits in effect a motion to dismiss the appeal, for the reason that it cannot be entertained, as “ ‘ The propi-ietors of the Mexican Mill Co.,’ being neither natural nor artificial persons authorized to maintain an action or -proceeding, there is therefore no plaintiff, and consequently no action or proceeding to support an injunction.”

Defendants may by virtue of special provisions of our statutes he sued by their copartnership name ; and plaintiffs, in a limited class of cases, maintain actions under an associate name. Yet we know of no authority, statutory or otherwise, which permits an action involving the subject matter of the present one to be prosecuted under a copartnership associate name.

This statement of the law is not controverted on the argument, and the error of the pleader is distinctly conceded by the learned counsel for appellants ; but assuming this to be an objection merely on account of “ a defect of parties plaintiff,” he insists that “ the objection should, in pursuance of Section 40 of the Civil Practice Act, have been taken by demurrer, and thereupon the defect might have been cured by an amendment of the complaint; but as no such objection was made in the lower Court, and defendant having submitted to a trial of the injunction matter, it is thereby concluded from raising the question in this Court.”

We think counsel misapprehend the true point of this objection. It is not such a difficulty as can be reached by anything contained in the code relating to demurrers. (Secs. 40, 45.) It is therein declared that the defendant may demur for certain enumerated defects apparent on the face of the complaint, among which are, that there is a defect of parties plaintiff or defendant, and that plaintiff has not the legal capacity to sue. When any of these defects do not appear upon the face of the complaint, the objection may be taken by answer; but if not taken by either demurrer or answer, the defendant shall be deemed to have waived the same. The expression, “ a defect of parties,” refers to the absence of some person or persons, who ought to be joined with the party on the record. Nor is the objection that “ the plaintiffs have not the legal capacity to sue,” but that no person, natural or artificial, is named as plaintiff. Certain persons, for instance, infants, idiots, lunatics, and married women, cannot sue except by guardians, next friends, or in the case of married women by joining their husbands in certain eases. This appears to be what the provision means, and not the absence of a real person as plaintiff; and therefore it would seem that if the defendant wished to raise the objection in the lower Court, it could do so only by motion to dismiss. But it is quite immaterial in this case as to the form of the objection, as the motion is resisted on no stronger ground than that if it had been made in the Court below the adverse party might have corrected its pleading by amendment, and the authorities cited by appellant apply only to such a class of cases. But it will be conceded that if the defect or omission is beyond the reach of an amendment, the objection may be taken at any time. Section 68 of the Code, in treating of amendments provides that “ the Court may in furtherance of justice, on such terms as may be proper, amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect.” * * *

The very first step towards the commencement of a civil action or proceeding is the filing of a complaint, in which it is indispensable that there be shown a plaintiff and a defendant, and without which it is an absolute nullity, and renders void all subsequent'proceedings had under it.

In this instance no person, natural, or artificial, is named as plaintiff; and if an amendment were allowed to supply the omission the effect of such amendment would necessarily be to make a plaintiff where there was none such at the inception of the action.

The section just quoted establishes an exceedingly liberal rule respecting amendments, yet there is nothing in its terms which would authorize an amendment of the character suggested by the record before us.

As there is no plaintiff in this case, there was no action in the ’ Court below and nothing to amend. So too, there being no appellant in this Court, there is really no appeal to be heard or determined.

In accordance therefore with the views expressed, we must allow the motion to dismiss the appeal. This conclusion forbids inquiry 'in respect to the other questions discussed by counsel at the hearing.