Nicholson

Action for the value of certain goods, wares and merchandise. A general demurrer was overruled and defendant answered, averring, among other things, that plaintiffs should not be permitted to maintain this action because they are a partnership transacting business in this state under a designation not showing the names of the persons interested as partners, as required by sections 2466 and 2468 of the Civil Code. The complaint was filed November 7, 1905. The first publication of the certificate of copartnership was on November 4, 1905, and was repeated thereafter November 11th, 18th, 25th, and December 2d. The certificate was filed with the county clerk November 7, 1905. The answer, pleading the statute in abatement, was filed December 19, 1905. Plaintiff had judgment, from which and from the order denying its motion for a new trial defendant .appeals.

The statute reads as follows: “Persons doing business as partners contrary to the provisions of this article shall not maintain any action . .. until they have first filed the certificate and made the publication herein required.” The failure to file the required certificate is matter of defense and must be set up .in the answer by…