dissenting. I am compelled to dissent from the judgment entered in this case. I think that the opinion of the court rests upon the assumption of the facts, that the respondent has a Christian name, and that the letters H. and C. are the initials of his Christian names. These facts do not appear upon the face of the complaint, and the appellants cannot specify by a demurrer these grounds of their objections to the complaint. Civ. Pr. Act, § 50. These objections should have been taken by an answer. Civ. Pr. Act, § 54. This view has been discarded by the court, and I wish to express my opinion upon the merits of the questions which have been raised by the demurrer.
The complaint must contain the names of the parties to the action. I claim that respondent has complied with this provision *613of tbe Civil Practice Act by describing in bis complaint the plaintiff and defendants, so that all the parties can be identified. The facts which are stated in the complaint effect this object, which is the result of good pleading. There can be no uncertainty respecting the identity of the respondent, and no other allegation of the name of the respondent can affect the substantial rights of any of the parties. The appellants, by the filing of their demurrer, admit that they borrowed a large sum of money of the respondent, and made and delivered to him their promissory notes and a mortgage upon certain real property, which constitute the subject-matter of this action. It is also admitted that the notes remain unpaid, and the appellants, under them hands and seals, knew and designated the respondent by the name in which he commenced this suit. I am unable to see in what manner the substantial rights of the appellants have been prejudiced by the alleged omission of the respondent to set forth his Christian name in the complaint.
I concede that the rules of sound pleading usually require the description of the parties to actions by their proper names when they are known. I am aware of the strictness which has prevailed concerning the matter, before the adoption of a practice act similar to that of this Territory. “ The plaintiff must be described by his Christian name and surname; and, if either be mistaken or omitted, it is ground for plea in abatement.” Steph. PI. 352; 1 Ch. PI (9th Am. ed.) 256, n. 1. If either party had a name of dignity, he must be described accordingly. The same reasons required the insertion in the complaint of the Christian name oí the plaintiff and his “name of dignity.” These rules of the common law have been abolished by our Civil Practice Act, which says nothing about the Christian names of parties to actions, or their dignities. The following sections establish the prin--ciples of interpreting the complaint of the respondent. “ In the construction of a pleading for the pimpose of determining its effects, its allegations shall be liberally construed with a view to substantial justice between the parties.” Civ. Pr. Act, § 78. “ The courts shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties; and no judgment shall be re*614versed or affected by reason of such error or defect.” Civ. Pr. Act, §79.
• In Nelson v. Highland, 13 Cal. 74, the complaint averred that “ Thomas Nelson and -Doble, whose Christian name is un_ known,” etc., and the defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action, and that there was a defect of parties because the Christian name of Doble was not given. The demurrer was sustained, the plaintiffs refused to amend their complaint, and the plaintiffs appealed from the final judgment which was rendered. Mr. Justice Baldwin delivered the opinion of the court, and said: “We do not think it was a good ground of demurrer that the Christian name of one of the .plaintiffs does not appear in the record. We cannot judicially know that one of the plaintiffs had either a Christian or heathen name, or that it is necessarily untrue that he has forgotten it if he had. Judgment reversed and cause remanded.”
In Commonwealth v. Gleason, 110 Mass. 66, an indictment was signed, “A true bill, A. Burbank, foreman.” The defendant moved to quash the indictment, on the ground that the proper and legal name of the foreman was not signed thereto. The motion was overruled, and the court held that “ if we assume that the signature contains only the initial letter of his Christian name, it is sufficient.”
A consonant may be presumed to be an entire Christian name as well as a vowel. Tweedy v. Jarvis, 27 Conn. 42. In Quarles v. Collier, 3 Strobh. (S. C.) 223, the plaintiff declared upon a promissory note as payable to herself, and her name in the note was expressed by the initials of her two Christian names and the whole of her surname. It was held that her name thus written, accompanied by her possession of the note, was prima facie evidence of identity.
The argument in support of the opinion is based upon the ground that the complaint is ambiguous and uncertain, but the conclusion is, that the complaint does not state facts sufficient to constitute a cause of action. This objection, if not taken by demurrer or answer, is deemed waived. Civ. Pr. Act, § 55. A complaint, which is ambiguous and uncertain, will uphold a judg*615ment, if it states sufficient facts to constitute a cause of action and tbe court has jurisdiction. If I understand the opinion, the error or defect complained of must be governed by the seventy-ninth section of the Civil Practice Act, supra, and the judgment cannot be reversed or affected by it.
The rule, which has been announced, appears to be in conflict with that held by this court in Kemp v. McCormick, 1 Mon. 420. The opinion in this case says: “ It is sufficient to describe a party to an action by any known and accepted abbreviation of his Christian name, and that the defendant, having signed his name to the note in question with such abbreviation, is now estopped from denying it.” The doctrine of estoppel is also applicable to the case at bar. We have seen that the appellants signed the notes and mortgage in which the respondent is described by the same name which appears in the complaint. I do not think that the appellants can now deny that H. C. Wiebbold is the name of the respondent.