Hargadine v. Gibbons

• Citation: 21 S.W. 726,114 Mo. 561
• Parties: HARGADINE et al. v. GIBBONS.
• Decision Date: 14 March 1893
• Court: United States State Supreme Court of Missouri

21 S.W. 726

114 Mo. 561

HARGADINE et al. v. GIBBONS.

Supreme Court of Missouri, Division No. 2.

March 14, 1893.

PARTNERSHIP — ACTION BY SURVIVING PARTNERS — PARTIES.

Rev. St. 1889, § 6023, providing that, "if one or more plaintiffs in a judgment or decree shall die before the same is satisfied or carried into effect, the judgment or decree, if concerning the personalty, shall survive to the executor or administrator of such deceased party," does not oust surviving partners of their rights to bring action on a judgment due the firm without making the administrators of deceased partners parties.

Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Action on a judgment by William A. Hargadine and others, as surviving partners of Crow, McCreery & Co., against Isaac W. Gibbons. Plaintiffs had judgment, and defendant appeals. Affirmed.

W. H. Clopton, for appellant. Richards & Williams, for respondents.

GANTT, P. J.

In January, 1876, Wayman Crow, William A. Hargadine, Hugh McKittrick, D. D. Walker, and Frank Ely, suing in their partnership name of Crow, McCreery & Co., obtained judgment against Isaac W. Gibbons. Since the judgment was obtained, Wayman Crow and Frank Ely have died, and both left wills, and letters testamentary were issued to their executors, and the estate of Ely is still open. By the terms of the will of Wayman Crow, the residue of his estate, real, personal, and mixed, was devised to William A. Hargadine and Henry Hitchcock, as trustees for his devisees and legatees. Mr. Ely's will makes no specific mention of the assets of Crow, McCreery & Co. This partnership expired by limitation. This judgment was never satisfied, and this action is brought by Hargadine, McKittrick, and Walker, as surviving partners of the firm, to obtain a judgment upon the former judgment, as the term has lapsed within which it is a lien, or within which an execution might issue thereon. The defendant defends on the ground that plaintiffs, as surviving partners, are not the proper parties to sue for the assets of the firm; that, the firm being dissolved by limitation, plaintiffs were not the real parties in interest, but it became assets of the estates of the deceased partners, and their executors were necessary parties to obtain this judgment. It further appears from the evidence that, while the partnership ceased to do business as such after the expiration of the time for which it was formed, the assets of the firm still belonged to the firm as such, and, by virtue of the original agreement, the debts were to be first paid; then each partner should receive back the capital invested; and, lastly, the surplus profits were to be distributed according to that agreement. But this division of profits was only made after the assets were collected and turned into cash. The uncollected accounts and choses in action still remained the property of the firm in liquidation. They did not belong to the individual partners; but, on the contrary, the partnership still existed for the purpose of collecting and distributing these assets. As each firm expired by limitation, a new one was formed, but only the capital was paid back to the partners from the old concern, and put into the new. Each partnership settled itself, and the books remained open until all assets had been collected and proceeds distributed. Each of the various firms, under names of Crow, McCreery & Co., Crow, Hargadine & Co., exists for purpose of settlement after the expiration of the partnership for active business. The copartnership of Crow, McCreery & Co. has never been finally wound up, and the judgment here sued on has remained unsatisfied, and is still the property of the firm. No transfer of it was ever made.

The evidence given at the trial by Mr. Hargadine was mostly to explain the fact that no final settlement of the affairs of Crow, McCreery & Co. has yet been made. It was stipulated in the partnership agreement that no administration should be had upon the partnership estate. The circuit court gave judgment for plaintiffs, and defendant appeals.

The sole question for decision is whether, under the foregoing facts, the...