Allgeier, Martin and Associates v. Ashmore, 9491

CourtCourt of Appeal of Missouri (US)
Citation508 S.W.2d 524
Docket NumberNo. 9491,9491
PartiesALLGEIER, MARTIN AND ASSOCIATES, Plaintiff-Appellant, v. Tom D. ASHMORE et al., Defendants-Respondents.
Decision Date05 April 1974

L. Thomas Elliston, Myers, Webster, Perry & Elliston, Webb City, for plaintiff-appellant.

No appearance for defendants-respondents.


The sole named plaintiff in this cause is 'Allgeier, Martin and Associates.' Plaintiff's petition commences: 'Comes now the Plaintiff and for its cause of action states: 1. That Plaintiff is a partnership . . .' The balance of this pleading, in two alternative counts, prayed for a money judgment against one corporation and three individuals (Tom, Philip and Michael Ashmore) for the reasonable value of 'work, labor and services' rendered by plaintiff at the request of defendants. Sheriffs' returns to issued summons and alias summons attest that service was effected on the corporation and upon Tom and Philip Ashmore; a non est return was filed to the summons issued for Michael Ashmore. Under date of December 3, 1970, the Circuit Court of Jasper County entered a default judgment against the corporation and Tom Ashmore. The judgment correctly stated that Michael Ashmore had not been served with process; it erroneously declared that Philip had not been served and ordered 'that this case remain on the active docket pending the service of process on these two defendants.' On February 3, 1972, Tom Ashmore filed 'Motion to Set Aside Default Judgment' which was sustained on February 5, 1973. Thereafter, on February 13, 1973, 'Allgeier, Martin and Associates, the above named plaintiff,' filed a notice of appeal 'from the order and Judgment entered in this action on the 5th day of February 1973, setting aside the default judgment.'

Whether the court nisi erred vel non in setting aside the default judgment as asserted in the points raised by appellant, need not be discussed or decided, for albeit no one except us has raised the subject, the partnership cannot recover in any event and all involved should be spared the effort and cost of prolonging litigation that cannot legally survive. Rule 79.04, V.A.M.R.

Missouri follows the common law or aggregate theory of partnership (Griffin v. Doss, 411 S.W.2d 649, 651 (Mo.App.1967)) rather than the entity theory. Ward v. State Farmers Mutual Tornado Ins. Co. of Mo., 441 S.W.2d 1, 4(3) (Mo.1969). The Uniform Partnership Law (Ch. 358 RSMo 1969, V.A.M.S.) did not transform a partnership into a separate or juristic entity (McKinney v. Truck Insurance Exchange, 324 S.W.2d 773, 775(1) (Mo.App.1959)) and, generally, all partners are necessary parties-plaintiff in actions to enforce an obligation due the partnership. Wittels v. Dubinsky, 343 S.W.2d 644, 645(1) (Mo.App.1961). Absent statutory authority, a partnership cannot sue in the firm name and a judgment rendered for a partnership so suing will be reversed on appeal (Windisch v. Farrow, 159 S.W.2d 392, 394...

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11 cases
  • Missouri-Indiana Inv. Group v. Shaw
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 9 Febrero 1983 "MER."We note that Missouri courts have dismissed suits brought solely in a partnership name, Allgeier, Martin and Associates v. Ashmore, 508 S.W.2d 524 (Mo.App.1974), or against a partnership as such, Tiffany Industries, Inc. v. Harbor Insurance Co., 536 F.Supp. 432, 434 (W.D.Mo.1982); ......
  • In re CMC Electronics Corp.
    • United States
    • U.S. Bankruptcy Court — Eastern District of Missouri
    • 20 Diciembre 1993 a "separate or juristic entity" and so cannot sue in its own name to collect a debt owed to it. Allgeier, Martin & Assocs. v. Ashmore, 508 S.W.2d 524, 525 (Mo.Ct.App. 1974). Rather, maintenance of a suit based upon a debt owed to a Missouri partnership requires the joinder of all the par......
  • Partners v. Kinnamon
    • United States
    • Missouri Court of Appeals
    • 28 Agosto 2012
    ...question is inconsistent with the controlling authority discussed above. The same can be said of Allgeier, Martin & Associates v. Ashmore, 508 S.W.2d 524, 525 (Mo.App.1974), in which the Court raised the issue of a partnership's capacity to sue sua sponte, following the entry of a default j......
  • N.E. & R. Partnership v. Stone
    • United States
    • Missouri Court of Appeals
    • 19 Febrero 1988
    ...and all partners are necessary parties-plaintiff in actions to enforce an obligation due the partnership. Allgeier, Martin and Associates v. Ashmore, 508 S.W.2d 524, 525 (Mo.App.1974). The Uniform Partnership Law, ch. 358, RSMo 1986, did not change that rule. Id. Some states agree. See, for......
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