Anderson v. Anderson
| Citation | 54 Wis.2d 666,196 N.W.2d 727 |
| Decision Date | 02 May 1972 |
| Docket Number | No. 105,105 |
| Parties | Christine ANDERSON, Appellant, v. Josephine ANDERSON, Respondent. |
| Court | United States State Supreme Court of Wisconsin |
This is an action for an accounting, commenced by appellant Christine Anderson against her mother-in-law, respondent Josephine Anderson. Appellant's complaint alleges that in the year 1946, appellant and respondent and their respective husbands purchased approximately six acres of real estate in the city of Oak Creek with money contributed by each. It was allegedly agreed between the parties to the purchase that the property would be used as a trailer park, to be known as Veteran's Delux Trailer Court, and that the profits from the operation of the trailer park would be divided equally among the four cotenants. William Anderson and his son were designated proprietors of the park, although it was anticipated that all four co-owners would participate in the work to be done in running the park.
Appellant alleges a breach of the agreement whereby each cotenant was to share equally in the profits generated by the operation of the park. It is alleged that in 1949 and in 1955, William and Josephine Anderson secretly diverted income from the venture and used it to buy two additional parcels of land. The complaint further alleges that, although the operation of the trailer park yielded profits of approximately $210,748.90 over the years, appellant was paid only $800, rather than her one-quarter share of $52,687.22. Appellant's husband, however, received annual payments of 'rent' and 'salary' from the business. The complaint reveals that respondent's husband is now deceased, although there is no indication of the disposition of his estate. Appellant asks for an accounting and for payments of her share of the profits.
Respondent demurred to the complaint on the ground of a defect in parties plaintiff or defendant, arguing that the complaint on its face shows the existence of a partnership, which would make all owners of the property, including appellant's husband, indispensable parties. The trial court sustained the demurrer; appeal is taken from that order.
William H. Bowman, Milwaukee, for appellant.
William A. Ketterer, Milwaukee, for respondent.
The sole issue presented upon this appeal is whether there is a defect in parties such that the demurrer was properly sustained.
There is no question but that all parties to the agreement are proper parties to this lawsuit. However, a complaint is not demurrable merely because proper parties are not before the court; the demurrer will be sustained only if necessary or indispensable parties have not been joined. Elliott v. Indemnity Ins. Co. (1930), 201 Wis. 445, 448, 230 N.W. 87; Borde v. Hake (1969), 44 Wis.2d 22, 30, 170 N.W.2d 768. If, as respondent alleges, a partnership was created by the agreement, all the partners are indispensable parties and must be joined. De Wit v. Lander (1888), 72 Wis. 120, 39 N.W. 349; Karp v. Coolview of Wisconsin, Inc. (1964), 25 Wis.2d 299, 304, 305, 130 N.W.2d 790.
The burden of proving the existence of a partnership rests with respondent. Morris v. Resnick (1955), 268 Wis. 410, 415, 67 N.W.2d 848. Sec. 178.03(1), Stats., defines the term partnership as 'an association of 2 or more persons to carry on as co-owners a business for profit.' The receipt of a share of those profits is deemed prima facie evidence that a person is a partner in the business. Sec. 178.04 (4), Stats. However, under sec. 178.04(2), a partnership will not be implied merely because of common ownership of property, whether or not profits are shared by the co-owners. Schleicker v. Krier (1935), 218 Wis. 376, 379, 261 N.W. 413. As stated in 68 C.J.S. Partnership p. 435, § 20c(2):
'A mere community of interest in property, such as exists between tenants in common or joint tenants of real or personal property, does not make such owners partners or raise a presumption that a partnership exists, and this is so even though they cooperate in making improvements on their property and in realizing and sharing the profits or the losses and expenses arising therefrom.
'The adoption of an assumed name, as a convenient mode of designating all the joint owners, in transactions relating to the common property, does not change the legal...
To continue reading
Request your trial
-
Heck & Paetow Claim Service, Inc. v. Heck
...claiming that such a valid relationship exists. Morris v. Resnick, 268 Wis. 410, 415, 67 N.W.2d 848 (1955); Anderson v. Anderson, 54 Wis.2d 666, 669, 196 N.W.2d 727 (1972). In Skaar v. Department of Revenue, 61 Wis.2d 93, 211 N.W.2d 642 (1973), the court held that the four elements necessar......
-
Johnson v. Weinberg, 80-251.
...and woman who may have shared gross returns,2 was held not to create a partnership. A similar result was reached in Anderson v. Anderson, 54 Wis.2d 666, 196 N.W.2d 727 (1972). In this instance, in order to establish an implied partnership between Leanor and Milton Weinberg, appellant is com......
-
State v. Ross, 75--20
...residents are indispensable or necessary parties to the action. The complaint is not demurrable on this ground. Anderson v. Anderson (1972), 54 Wis.2d 666, 668, 196 N.W.2d 727. We, therefore, conclude that the complaint states facts sufficient to constitute a cause of action and that the al......
-
Skaar v. Wisconsin Dept. of Revenue
...a provision for filing joint returns similar to the federal system.3 26 U.S.C.A. Sec. 704(e).4 Ch. 178, Stats.5 Anderson v. Anderson (1972), 54 Wis.2d 666, 196 N.W.2d 727.6 Thomas v. Department of Taxation (1947), 250 Wis. 8, 26 N.W.2d 310.7 Sec. 178.15(5), Stats.8 Thomas v. Department of T......