Siren v. Montague

(concurring).

I agree with the conclusion reached by my associates that the operator of defendant’s truck was not at fault, and I concur in the decree dismissing the suit, but I believe that the exception of no right of action should have been sustained and the suit dismissed on this ground, instead of on the merits.

The exception was based- on the fact that plaintiffs brought suit as individuals for damage alleged by them to have been sustained by property belonging to an existing partnership.

The persons composing a partnership have no right, so long as the partnership exists, to bring suit in their individual names on a partnership claim. In the syllabus of Wolf & Sons v. New Orleans Tailor-Made Pants Co. et al., 52 La. Ann. 1357, 27 So. 893, we find the following:

“During the existence of a commercial partnership, suits in its favor should be brought in its name as a partnership, and under the firm name, and as appearing through and represented by all of the partner^ composing the partnership.

u ⅜ * * The suits should not be brought in the names of the individual partners.”

In E. B. Hayes Machinery Co. v. Eastham, 147 La. 347, 84 So. 898, 899, the Supreme Court said: “Under the. civil law, which prevails in this state, a partnership is a legal entity entirely separate and distinct from the persons who compose it, and may have its *199 own creditors and debtors, to tbe same extent as tbe individual partners. Newman v. Eldridge, 107 La. 315, 31 So. 688; Stotbart v. Hardie & Co., 110 La. 700, 34 So. 740; Smith v. McMicken, 3 La. Ann. 322. So long as tbe partnership is not dissolved, it alone can maintain an action on tbe firm’s claims, and even tbougb all its members join therein, such a suit cannot be maintained in tbe absence of tbe partnership as a party plaintiff."

It is very evident from a reading of tbe two decisions above cited that tbe members of a partnership have no right whatever to stand in judgment on a partnership claim so long as the partnership exists. There is a total absence of right in them as individuals.

The exception of no right of action was filed in this court, and the question which it presents was not considered below; for this reason 'plaintiffs claim that the exception came too late. They cite several cases holding that a plea of want of capacity is a dilatory exception and 'cannot be filed after issue joined.

The exception does not challenge the authority or capacity of plaintiffs, but denies that any rights exist in them. It charges that the claim belongs to the partnership, and to the partnership only. The cases cited are not in point. I can well see that, if a tutor, for instance, brings suit as tutor, an exception challenging his right to appear as tutor on the ground that he is not properly qualified must be filed in limine, or that the, qualifications of an administrator who appears in his said capacity cannot be attacked after issue joined. But that is not the ease which is presented here. Here individuals appear, make claims as individuals, ask for judgment as individuals, and allege that the property for the damage of which claim is made belongs to an existing partnership.

I cannot agree with my associates that this exception is in effect one of vagueness. There is nothing vague about the petition. The exception, being one of no right of action founded on a total absence of right in plaintiffs, may be filed at any time and even in the appellate court.

In Brown & Sons v. Saul et al., 4 Mart. (N. S.) 434, 16 Am. Dec. 175, the Supreme 'Court said: • “A total want-of legal right in a suitor, in relation to the matters in litigation, ought to be taken into consideration and acted on by courts of justice, at any stage of a cause.”

In La Casse v. New Orleans, T. & M. R. Co., 135 La. 129, 64 So. 1012, 1013, is found the following: “We agree with defendant that a total absence of right on the part of the plaintiff may be urged at any stage of the cause.” See, also, Montford v. Schmidt, 36 La. Ann. 750.

I do not feel that this court has a right to construe a petition filed by individuals as, in effect, an inartistically drawn petition bn be-, half of a partnership.' If this court may thus, rewrite the petition, why could not the courts have done the same thing in the three cases just above cited?

I concur in the decree.