Hemm v. Juede

• Decision Date: 30 December 1910
• Citation: 133 S.W. 620,153 Mo. App. 259
• Parties: HEMM v. JUEDE.
• Court: Missouri Court of Appeals

133 S.W. 620

153 Mo. A. 259

HEMM v. JUEDE.

St. Louis Court of Appeals. Missouri.

December 30, 1910.

Rehearing Denied January 24, 1911.

1. APPEAL AND ERROR (§ 305) — QUESTIONS REVIEWABLE — EXCEPTION TO DENIAL OF NEW TRIAL.

Where a party moving for new trial presented no exception to the overruling of the motion, the case stands on appeal as though a motion for new trial had not been made.

2. APPEAL AND ERROR (§ 296) — QUESTIONS REVIEWABLE — MOTION FOR NEW TRIAL — NECESSITY.

The rulings of the trial court on motions made after final judgment, such as motions to quash an execution, pay over money on execution, set aside a judgment for irregularity, set aside execution sale, are reviewable on appeal without a motion for rehearing or new trial, and the fact that the judgment entered in the case does not affirmatively show the ground of the court's judgment, or that the evidence was taken on the motion, does not change the rule, but merely requires a bill of exceptions.

3. APPEAL AND ERROR (§ 281) — QUESTIONS REVIEWABLE — MOTION FOR NEW TRIAL — NECESSITY.

A ruling on a motion, which is treated as an independent proceeding, is not reviewable on appeal, in the absence of a motion for new trial.

4. PARTNERSHIP (§ 330) — FINAL JUDGMENT — DISSOLUTION OF PARTNERSHIP.

A decree dissolving a firm and appointing a receiver to distribute the proceeds of a sale of the firm property, after deducting the costs of the proceeding, equally between the partners, is a final decree, and nothing remains to do but to execute it by administering the estate.

5. APPEAL AND ERROR (§ 296) — QUESTIONS REVIEWABLE — MOTION FOR NEW TRIAL — NECESSITY.

A motion by a trustee in bankruptcy of a partner, filed after a decree dissolving the firm and appointing a receiver to distribute the proceeds of a sale of the firm property equally between the partner and copartner, rendered in a suit by the copartner for dissolution of the firm and the appointment of a receiver, for an order directing the receiver to turn over to the trustee the share of the partner in the fund realized out of the firm assets, is not the commencement of an independent proceeding, for the trustee merely stands in the place of the partner, and the ruling on the motion is reviewable, in the absence of a motion for new trial.

6. PARTNERSHIP (§ 179) — FIRM ASSETS — RIGHTS OF PARTNERS.

The right of a partner to have firm property applied to the payment of firm debts exists not only against the copartner, but against all claiming through him, including his trustee in bankruptcy.

7. PARTNERSHIP (§ 179) — FIRM ASSETS — DISTRIBUTION.

Where the partners are in possession and control of the firm property, they may make any honest disposition of it, and each may waive his equitable right to have it applied to the payment of firm debts, and consent to the application thereof to the payment of a partner's individual debts.

8. PARTNERSHIP (§ 181) — DISSOLUTION — ADMINISTRATION OF ESTATE.

The court, in the administration of a firm estate in a suit for the dissolution of the firm and the distribution of its estate, must apply the firm assets to the satisfaction of the firm creditors to the exclusion of the creditors of the individual partners.

9. PARTNERSHIP (§ 183) — DISSOLUTION — ADMINISTRATION OF ESTATE.

A decree dissolving a firm and appointing a receiver to distribute the proceeds of a sale of the firm property equally between the partners, after deducting the costs of the proceeding, rendered on the petition of a partner praying for the dissolution of the firm and a division of the assets between him and his copartner, after the payment of the firm debts, and on a stipulation permitting the appointment of a receiver to take charge and dispose of the firm assets, is not inconsistent with the idea that firm creditors presenting their claims before the distribution of the firm funds shall be paid out of the firm assets; and while the funds are in the custody of the court, subject to its proper orders, the partner suing for the dissolution of the firm and the appointment of a receiver has not waived or lost his equitable right to have the firm assets applied to the payment of firm debts, and so long as there is any probability that a claim may be upheld as a firm liability, the court may not order the receiver to pay over to the trustee in bankruptcy of the copartner the share of the copartner in the firm assets.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Francis Hemm against Richard F. Juede. From an order sustaining an intervening petition filed by C. William Koenig, trustee in bankruptcy of defendant, plaintiff appeals. Reversed and remanded.

Appeal by plaintiff from the action of the circuit court of the city of St. Louis in sustaining the intervening petition filed by the trustee in bankruptcy of the defendant.

The facts in the case are undisputed. From August 31, 1907, to July 20, 1908, Francis Hemm and Richard F. Juede were in partnership carrying on a retail drug business in the city of St. Louis. On July 15, 1908, one George B. Riefling commenced suit against Juede in the circuit court of said city to recover damages for personal injuries alleged to have been sustained through the negligence of Juede, acting as a member of said firm, in compounding and filling a physician's prescription. On July 20, 1908, Hemm brought this action, praying for the dissolution of the partnership, the appointment of a receiver, and the division between the parties of the partnership assets, after payment of the partnership debts. On August 3, 1908, defendant entered his appearance to the June term, 1908, and by consent of both parties the court set said cause down for immediate hearing on its merits. Defendant filed an answer and cross-bill praying that the bill of plaintiff be dismissed, the partnership dissolved, and a receiver appointed to dispose of the assets and distribute the proceeds. On the same day a stipulation between the parties was filed in the cause as follows: "Cause submitted. Decree of dissolution on defendant's cross-bill and Theodore Hemmelmann, Jr., appointed receiver without bond to take charge of and dispose of assets and to report to court from time to time." The court on said 3d day of August, 1908, entered a decree as follows: "Now on this day comes the plaintiff by Taylor R. Young, his attorney, and comes the defendant by Messrs. Buder & Buder, his attorneys, and the parties hereto having entered their respective appearances to the June term, 1908, and consenting to an immediate setting and hearing in said cause on defendant's cross-bill, plaintiff having heretofore dismissed his bill, the court thereupon proceeds to hear the evidence and proof adduced by the parties, and being fully advised of and concerning the premises, doth find in favor of the defendant on the issues herein joined. It is therefore adjudged, ordered, and decreed that the partnership heretofore known as Hemm & Juede, and engaged in conducting a retail drug business at 3100 South Grand avenue in the city of St. Louis, be, and the same hereby is, dissolved and that for the purpose of the distribution of the assets, doth hereby appoint Theodore Hemmelmann, Jr., receiver, without bond, to take charge and dispose of the assets, including the leasehold mentioned in the cross-bill herein, at public or private sale, in bulk, for cash, to the highest and best bidder thereof, subject to the approval of the court, however, and to distribute the proceeds of such sale, after deducting the costs of this proceeding, equally between the parties plaintiff and defendant."

On September 26, 1908, the receiver filed in the cause a report showing that he had turned the partnership assets into cash, and, after paying the expense of the receivership and the claims of sundry creditors, and deducting his agreed fee of $200 and making unequal advancements to Messrs. Juede and Hemm, he still had a balance due Juede of $3,295.28 and a balance due Francis Hemm of $3,157.10. On September 30, 1908, Riefling filed an amended petition in the damage suit making the plaintiff and defendant herein, Juede and Hemm, doing business under the style and firm name of Hemm & Juede, parties defendant. And thereafter, on the same day, he filed a motion in this action praying leave to join the receiver as party defendant in the damage suit. On January 18, 1909, defendant Juede was adjudicated a bankrupt by the District Court of the United States within and for the Eastern division of the Eastern judicial district of Missouri. On February 2, 1909, plaintiff filed a motion in this cause praying the continuance of the receivership, and that no order of distribution in this cause be made until such time as the damage suit was finally determined. On the same day C. William Koenig, who had in the meantime been duly appointed and qualified as trustee in bankruptcy of defendant Juede, appeared and filed in this cause his petition for an order on the receiver to turn over to him as such trustee the sum of $3,295.28, as the share of Juede in the fund realized out of the partnership assets and shown by the report to be in the hands of the receiver. On February 4, 1909, the motion of Riefling for leave to sue the receiver and the motion of plaintiff to continue the receivership, etc., and the petition of said trustee in bankruptcy, were submitted to the court by consent, on certain evidence and admissions, including the files in the damage suit, and a petition which had been filed by Francis Hemm in the bankruptcy proceeding asking the bankruptcy court to refrain from taking hold of the partnership assets until the partnership liabilities were settled and the state court ordered distribution.

The evidence tended to show, among other things, that the damage suit was well...