Glade v. White

• Decision Date: 16 October 1894
• Citation: 42 Neb. 336,60 N.W. 556
• Parties: GLADE v. WHITE.
• Court: Nebraska Supreme Court

42 Neb. 336

60 N.W. 556

GLADE

v.WHITE.

Supreme Court of Nebraska.

Oct. 16, 1894.

Syllabus by the Court.

1. Where a partnership has been dissolved, and, in the settlement of the partnership affairs, one partner has become the owner of the accounts and debts payable to the partnership, such partner may maintain an action at law against the other for moneys collected on such accounts by such other partner, and withheld by him without the knowledge of the plaintiff.

2. The jurisdiction of the county court depends upon section 16 of article 6 of the constitution, defining and limiting its jurisdiction, and on acts of the legislature in pursuance thereof, and not upon ancient distinctions between proceedings at law and in equity or between forms of action.

Error to district court, Saline county; Morris, Judge.

Action by Charles C. White against John D. Glade. Judgment for plaintiff, and defendant brings error. Affirmed.M. A. Hartigan, for plaintiff in error.

F. I. Foss, for defendant in error.

IRVINE, C.

White sued Glade in the county court of Saline county. To White's petition, Glade demurred. The demurrer was overruled, and, the defendant electing to stand thereon, judgment was entered for plaintiff. From this judgment, Glade prosecuted error to the district court, which affirmed the judgment of the county court, and Glade now seeks to reverse the judgment of the district court affirming that of the county court.

An amended petition appears in the transcript, but it was not filed until February 15th, while the demurrer was overruled February 13th. The record does not show any leave to file the amended petition, and the judgment recites that the cause came on for hearing on the petition. The demurrer must, therefore, be treated as attacking the original petition, and not the amended petition. The prayer was the same in each petition, and the differences were only that in the amended petition the facts are pleaded with greater certainty. We do not regard these differences as very material in considering the demurrer. The petition alleged, in substance, that the plaintiff and defendant had been partners; that the partnership was dissolved in December, 1888, at which time all claims as they appeared on the books of the firm were bought by the plaintiff; that the books were not in all instances correct; that in November, 1888, the defendant had drawn a check upon the bank account of the firm, amounting to $118.45, and appropriated its proceeds to his own use without accounting therefor; that the defendant had obtained possession of certain grain (describing it), which he had appropriated to his own use, and not accounted for; and that certain accounts had been collected by the defendant, and the money not turned over to the plaintiff. While the petition is not very artistically drawn, it does charge that there had been a partnership; that there had been a dissolution; that by the dissolution the plaintiff had become entitled to the indebtedness owing the firm; and that certain items of this indebtedness the defendant had collected and appropriated to his own use. The allegations in regard to the appropriation of the grain may be disregarded. If they belonged in a separate count, the remedy was by a motion to require a separate statement, and, if the averments in regard to the accounts would in themselves be sufficient against demurrer, those in regard to the grain were at most surplusage.

The demurrer was upon three grounds: First, that plaintiff has not legal capacity to sue; second, that the court had no jurisdiction of the subject-matter; third, that the petition did not state facts sufficient to constitute a cause of action.

We hardly understand upon what theory the defendant contends that the plaintiff had not legal capacity to sue. Certainly, no incapacity is disclosed in the petition. It would seem from the argument that the only point claimed under this head is that the petition discloses that the action concerned partnership matters, and that therefore the plaintiff could not sue at law. This objection does not go to his legal capacity, and will be considered in connection with the third assignment of the demurrer.

It is urged that the county court had no jurisdiction of the subject-matter, because, if the petition did state a cause of action, it must be one in equity for an accounting, and the county court has no jurisdiction of such cases. The petition does not state a case for an accounting. It must stand or fall as an action for the recovery of specific sums of money, and therefore, if it does state a cause of action, it is clearly one within the jurisdiction of the county court, less than $1,000 being claimed. But we wish here to take occasion to say that the jurisdiction of the county court does...