Cowan v. Leming

• Decision Date: 07 March 1905
• Citation: 85 S.W. 953,111 Mo. App. 253
• Parties: COWAN v. LEMING.
• Court: Missouri Court of Appeals

85 S.W. 953

111 Mo. App. 253

COWAN v. LEMING.

St. Louis Court of Appeals. Missouri.

March 7, 1905.

PARTNERSHIP — DISSOLUTION — DEATH OF PARTNER — DEBTS — ACTIONS — PARTIES — DISMISSAL — EFFECT — ALLEGATION — JUDGMENTS — EXECUTION.

1. Rev. St. 1899, § 65, provides that all demands presented for allowance against partnership effects, or exhibited for allowance in the manner pointed out for exhibition of demands against estates of deceased persons, shall be presented within one year after filing of the bond by the surviving partner or by the executor or administrator of the deceased partner for administration of the partnership effects, or shall be forever barred, etc.; and section 191 declares that every person having a demand against an estate may establish the same by the judgment or decree of the court, and exhibit a copy of the judgment to the probate court, where the claim may be allowed and paid as provided. Held, that where a judgment was recovered against L., as surviving partner of a firm, the judgment creditor was not entitled to execution against such surviving partner as administrator of the firm's assets, but was only entitled to have the judgment certified to the probate court for allowance and classification against the partnership estate.

2. Where plaintiff sued a firm, and, on service being obtained only on one of the partners, dismissed the suit as to the other, and took judgment only against the partner served, such procedure

operated to dismiss the suit as against the firm, leaving the partner served to answer individually for the debt.

3. The members of the firm being jointly and severally liable for its debts, the taking of judgment against the partner served alone did not release the other partner from his liability for the debt.

4. The dismissal of the suit as to the partner not served was an election by plaintiff not to proceed against the defendants as partners, and an abandonment of his right to look primarily to the assets of the firm for a payment of his debt.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by J. S. Cowan against M. E. Leming. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This suit was commenced before a justice of the peace to recover a balance of $50 due plaintiff from Leming & Lamson, a partnership composed of M. E. Leming and E. F. Lamson, the account being made out against Leming & Lamson, as partners. The return on the summons issued by the justice showed service on Lamson alone, and the plaintiff dismissed the suit as to Leming, and took judgment against Lamson, who appealed to the circuit court. Pending the appeal, Lamson died. A scire facias was issued to Leming to show cause why the suit should not be revived against him as the administrator of the partnership estate of Leming & Lamson. The return of Leming to the scire facias (duly sworn to), omitting caption, is as follows: "Now comes M. E. Leming, and, for answer to the...