Caldwell v. Hawkins

• Decision Date: 30 April 1881
• Citation: 73 Mo. 450
• Parties: CALDWELL, Administrator, v. HAWKINS, Public Administrator, Appellant.
• Court: Missouri Supreme Court

73 Mo. 450

CALDWELL, Administrator,

v.HAWKINS, Public Administrator, Appellant.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Holt Circuit Court.--HON. H. S. KELLEY, Judge.

REVERSED.

The other defendants alluded to in the opinion were Luman, the surviving partner, Jackson, who claimed some interest under Luman, the heirs of Warner, the deceased partner, and Ames, who was in possession of the property under an agreement with Luman, Jackson and the public administrator.

Parish & Collins for appellant, cited Acts 1866, p. 84, §§ 1, 6; Acts 1870, p. 224, §§ 1, 2; Julian v. Ward, 69 Mo. 153; Dodson v. Scroggs, 47 Mo. 285; Cones v. Ward, 47 Mo. 289; Ensworth v. Curd, 68 Mo. 282; Titterington v. Hooker, 58 Mo. 593; Pearce v. Calhoun, 59 Mo. 272; Overton v. McFarland, 15 Mo. 313; Miller v. Woodward, 8 Mo. 169.

Heren & Son and W. W. Caldwell for respondent.

Luman had taken possession of the mill, claiming one-half of same. Hawkins says, in his answer, that he did not know what interest the parties owned in said mill. Caldwell and the creditors claimed that Luman, and Jackson as his assignee, after the death of Warner, only owned one-third of said mill property; that Luman and Jackson were wrongfully appropriating one-half the rents and profits, and were both insolvent; that said mill property was being destroyed, and being wasted. Under this state of facts, certainly no court except one clothed with general equity powers could try and determine the questions involved. The question of title to real estate was involved between the parties, and to be determined from parol, and the equitable rights of the parties were also to be determined from the amount invested. The question of the application of rents and profits depended upon the equitable title and rights of the parties. Waste, insolvency of the parties in possession, were questions that involved, or might involve, the appointment of a receiver, as well as an accounting between the parties since the death of said Warner; all of which questions were cognizable only by a court exercising and clothed with general equity powers. The probate court, therefore, had not jurisdiction, and the circuit court had. Ensworth v. Curd, 68 Mo. 282; First Baptist Church v. Robberson, 71 Mo. 326; Miller v. Woodward, 8 Mo. 169; Clark v. Henry, 9 Mo. 339; Coil v. Pitman, 46 Mo. 51; Presbyterian Church v. McElhinney, 61 Mo. 540.

NORTON, J.

It appears from the record in this case that there existed in Holt county a partnership composed of George Warner and James Luman, under the name and style of Warner & Luman; that this partnership was engaged in the milling business and owned real estate and mill property; that said partnership was dissolved by the death of said Warner, and that plaintiff became the administrator of the individual estate of said Warner, and defendant Hawkins, as public administrator of Holt county, by virtue of an order of the probate court of said county, administered upon the partnership estate of said firm; that the said real estate and mill property constituted all the assets of said firm; that while both of these estates were thus in course of administration, the plaintiff, as the administrator of the undivided estate of said Warner, deceased, instituted this suit in the circuit court of said county against defendant Hawkins, public administrator in charge of the...