Hargadine v. Gibbons
| Decision Date | 14 March 1893 |
| Citation | 21 S.W. 726,114 Mo. 561 |
| Parties | Hargadine et al., v. Gibbons, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Affirmed.
W. H Clopton for appellant.
(1) Section 6023, Revised Statutes, 1889, provides that "if one or more plaintiffs in a judgment or decree shall die before the same is satisfied or carried into effect, the judgment or decree, if concerning the personalty, shall survive to the executors or administrators of such deceased party." Gaston v. White, 46 Mo. 489; Welch v. City, 12 Mo.App. 516; Simmons v. Heman, 17 Mo.App. 444; Sims v. Kelsey, 75 Mo. 62, 68. Section 1990 provides that every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in section 1991. The latter section refers to executors, etc., and "trustees of an express trust." First. Partners inter sese are trustees as to firm property after dissolution, but the trust is implied not express. Coudry v. Gilliam, 60 Mo. 86. (2) Even as to choses in action, when a partnership is dissolved by mutual consent, and one partner dies, the survivor cannot sue. Ins. Co. v. Enslin, 37 Mo. 454; Bredon v. Ins. Co., 28 Mo. 181. Second. If the partnership debts are paid the surviving partners have no right to the assets, and they pass to the heirs (if realty) and to the administrators (if personalty). Rongley v. Tiechman, 10 Mo.App. 257; State v. Moore, 18 Mo.App. 406; Tieman v. Molliter, 71 Mo. 512; Cowgill v. Linnel, 20 Mo.App. 138.
Richards & Williams for respondents.
(1) The only question to be decided by this court is whether plaintiffs were the proper parties to sue under the facts of the case. A partnership after dissolution still exists in a limited sense for the purpose of collecting its assets. Story on Partnership, secs. 325, 328, quoted and approved in Mudd v. Bast, 34 Mo. 465; Coudrey v. Gilliam, 60 Mo. 92, 93. (2) One feature of the partnership remaining after dissolution is the right of survivorship. Ober v. Railroad, 13 Mo.App. 81; Kinsler v. McCants, 4 Rich. Laws (S. C.), 46; Shields v. Fuller, 4 Wis. 102; Strange v. Graham, 56 Ala. 614; Stillwell v. Gray, 17 Ark. 473. (3) The representatives of deceased parties are the only persons in a position to dispute the right of surviving partners to collect assets. Revised Statutes, 1889, sec. 61; Matney v. Gregg Bros. Co., 19 Mo.App. 107; Weise v. Moore, 22 Mo.App. 530.
In January, 1876, Wayman Crow, William A. Hargadine, Hugh McKittrick, D. D. Walker and Frank Ely, suing in their partnership name of "Crow, McCreery & Co.," obtained judgment against Isaac W. Gibbons. Since the judgment was obtained, Wayman Crow and Frank Ely have died and both left wills, and letters testamentary were issued to their executors, and the estate of Ely is still open.
By the terms of the will of Wayman Crow, the residue of his estate, real, personal and mixed was devised to Wm. A. Hargadine and Henry Hitchcock, as trustees for his devisees and legatees. Mr. Ely's will makes no specific mention of the assets of "Crow, McCreery & Co." This partnership expired by limitation.
This judgment was never satisfied and this action is brought by Hargadine, McKittrick & Walker, as surviving partners of the firm to obtain a judgment upon the former judgment, as the term has lapsed within which it is a lien or within which an execution might issue thereon. The defendant defends on the ground that plaintiffs as surviving partners are not the proper parties to sue for the assets of the firm; that the firm being dissolved by limitation plaintiffs were not the real parties in interest but it became assets of the estates of the deceased partners, and their executors were necessary parties to obtain this judgment.
It further appears from the evidence, that, while the partnership ceased to do business as such after the expiration of the time for which it was formed, the assets of the firm still belonged to the firm as such, and, by virtue of the original agreement, the debts were to be first paid then each partner should receive back the capital invested, and lastly the surplus profits were to be distributed according to that agreement.
But this division of profits was only made after the assets were collected and turned into cash. The uncollected accounts and choses in action still remained the property of the firm in liquidation; they did not belong to the individual partners; but on the contrary the partnership still existed for the purpose of collecting and distributing these assets. As each firm expired by limitation a new one was formed, but only the capital was paid back to the partners from the old concern and put into the new. Each partnership settled itself, and the books remained opened until all assets have been collected and proceeds distributed. Each of the various firms under name of Crow, McCreery & Co., Crow, Hargadine & Co. exists for purposes of settlement after the expiration of the partnership for active business.
The co-partnership of Crow, McCreery & Co. has never been finally wound up, and the judgment here sued on has remained unsatisfied, and is still the property of the firm. No transfer of it was ever made.
The evidence given at the trial by Mr. Hargadine was mostly to explain the fact that no final settlement of the affairs of Crow, McCreery & Co. has yet been made.
It was stipulated in the partnership agreement that no administration should be had upon the partnership estate.
The circuit court gave judgment for plaintiffs, and defendant appeals.
I. The sole question for decision is, whether under the foregoing facts, the power to sue and collect partnership assets, when they consist in a judgment, survives to the surviving partners or the personal representatives of the individual partners.
The learned counsel for defendant contends that the common-law rule by which this judgment would unquestionably survive to the surviving partners has been abrogated by section 6023, Revised Statutes, 1889, which provides that, "if one or more plaintiffs in a judgment or decree shall die before the same is satisfied or carried into effect, the judgment or decree, if concerning the personalty, shall survive to the executors or administrators of such deceased party." Whereas counsel for plaintiffs insist that the property in dispute is a mere chose in action and this action is an action for debt and not in the nature of a statutory proceeding for revival of a judgment.
Under the facts of this case, notwithstanding the partnership was dissolved by limitation in the original articles of agreement, as to the making of new contracts, or carrying on the...
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