Nebraska Revised Statute 25-313

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Chapter 25

25-313.

Company, partnership, or unincorporated association; designation.

Any company or association of persons formed for the purpose of (1) carrying on any trade or business, (2) holding any species of property in this state, or (3) representing employees in collective bargaining with employers, and not incorporated, may sue and be sued by such usual name as such company, partnership or association may have assumed to itself or be known by. It shall not be necessary in such case to set forth in the process or pleadings or to prove at the trial the names of the persons composing such company.

Source

  • R.S.1867, Code § 24, p. 397;
  • R.S.1913, § 7594;
  • C.S.1922, § 8537;
  • C.S.1929, § 20-313;
  • R.S.1943, § 25-313;
  • Laws 1947, c. 82, § 1, p. 256.

Annotations

  • 1. Carrying on trade or business

  • 2. Holding property

  • 3. Labor unions

  • 4. Miscellaneous

  • 1. Carrying on trade or business

  • Pleading must show that partnership was formed for carrying on trade or business or for holding property in this state. McJunkin v. Placek & Fitl, 80 Neb. 373, 114 N.W. 411 (1907).

  • Unincorporated company, organized and doing business in another state, cannot sue here in firm name. Weisz & Mall Co. v. Davey, 28 Neb. 566, 44 N.W. 470 (1890).

  • Alleging that company is actually carrying on business in state is sufficient. Jansen & Co. v. Mundt, 20 Neb. 320, 30 N.W. 53 (1886).

  • Allegation that partnership is organized and doing business in State of Nebraska is sufficient to authorize carrying on of action in firm name. Chamberlain Banking House v. Noyes, Norman & Co., 3 Neb. Unof. 550, 92 N.W. 175 (1902); Biddle v. Spatz & Miner, 1 Neb. Unof. 175, 95 N.W. 354 (1901).

  • In suit to enjoin violation of federal statute by members of partnership, federal district court for Missouri, wherein members resided, had jurisdiction although place of partnership's business was in Nebraska. Sutherland v. United States, 74 F.2d 89 (8th Cir. 1934).

  • Partnership may sue in firm name on cause of action which accrued in the course of the partnership business. Shoaff v. Gage, 168 F.Supp. 161 (D. Neb. 1958).

  • 2. Holding property

  • Allegation that company is formed to carry on some trade or business or to hold some species of property in this state and that it is not incorporated is essential to maintenance of action. Burlington & Missouri River Railroad Company in Nebraska v. Dick & Son, 7 Neb. 242 (1878).

  • 3. Labor unions

  • Prior to 1947 amendment, where unincorporated association was not formed to carry on some trade or business, or to hold some species of property in this state, service of process could not be properly made on such association in this state. Hurley v. Brotherhood of Railroad Trainmen, 147 Neb. 781, 25 N.W.2d 29 (1946).

  • 4. Miscellaneous

  • An unincorporated association may represent employees in collective bargaining but must comply with section 25-314, R.R.S.1943, [now section 25-530.08], before it can bring an action in court. Nebraska Council of Educational Leaders v. Nebraska Dept. of Education, 189 Neb. 811, 205 N.W.2d 537 (1973).

  • Where name of plaintiff and right to sue are improperly stated, the defect is waived if not objected to. Champlin Bros. v. Sperling, 84 Neb. 633, 121 N.W. 976 (1909).

  • Partnership may sue or be sued in firm name. Stelling v. Peddicord, 78 Neb. 779, 111 N.W. 793 (1907).

  • This section is special in character, and prescribed course of procedure must be closely followed. Meyer v. Omaha Furniture & Carpet Co., 76 Neb. 405, 107 N.W. 767 (1906).

  • When the original action is against a partnership and during its pendency an amended petition is filed against the individual members, that is an abandonment or a discontinuance of the action against the firm. Wigton & Whitham v. Smith, 57 Neb. 299, 77 N.W. 772 (1899).

  • Section is to be strictly construed. Church v. Callihan, 49 Neb. 542, 68 N.W. 932 (1896).

  • If the plaintiff's petition sets out fully the names of the parties suing and then recites "late partners under the firm name . . ." the action is not brought within the provisions of this section. Smith v. Gregg, 9 Neb. 212, 2 N.W. 459 (1879).

  • So long as the defendant can be identified as the one against whom the judgment was rendered, he is as much bound by the judgment, and those claiming under the judgment are as much entitled to its benefits, to all intents and purposes, as if the defendant had been sued by his right name. Toulousaine de Distrib. v. Tri-State Seed & Grain, 2 Neb. App. 937, 520 N.W.2d 210 (1994).

  • Even though stock yard companies were separate legal entities, doctrine of primary jurisdiction was not applicable to oust federal court of jurisdiction. McCleneghan v. Union Stock Yards Co., 298 F.2d 659 (8th Cir. 1962).

  • Disbarment proceedings did not operate to deprive lawyer of equal protection of the law under this section. Niklaus v. Simmons, 196 F.Supp. 691 (D. Neb. 1961).