Neustadt v. Daube
| Decision Date | 16 June 1942 |
| Docket Number | 30661. |
| Citation | 126 P.2d 999,190 Okla. 694,1942 OK 242 |
| Parties | NEUSTADT v. DAUBE et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The statutory right of surviving partner to succeed to all partnership assets in trust for purpose of liquidation is exclusive.
2. Where a surviving partner brings an action in the district court for purpose of obtaining an order authorizing him to sell property of the partnership in the time and manner to be directed by the court, held that the action is one of equitable cognizance and is within the jurisdiction of the district court.
Appeal from District Court, Carter County; Marvin Shilling, Judge.
Action by Sam Daube and another against Walter Neustadt, executor of the estate of Max Westheimer, deceased, to obtain an order to sell the remaining assets of a partnership at public sale under supervision of the district court. From a judgment for plaintiffs, defendant appeals.
Affirmed.
W. W Potter, of Ardmore, for plaintiff in error.
Wm. G Davisson, of Ardmore, for defendants in error.
This action was instituted in the District Court of Carter County by Sam and Dave Daube, as the surviving partners of the partnership of Westheimer and Daube, for the purpose of obtaining an order from said court to sell the remaining assets of said partnership at public sale under the direction and supervision of that court. Walter Neustadt, executor of the estate of Max Westheimer, the deceased partner, was made a party to the action. The court entered its judgment ordering the sale of said assets, from which judgment Neustadt, as such executor, has perfected his appeal. The parties will hereinafter be designated as "surviving partners" and "executor".
Stated briefly, these are the facts: The firm of Westheimer and Daube was a partnership consisting of Max Westheimer, Sam Daube, and Dave Daube, each of whom owned an equal part of said firm; the assets of the firm consisted solely of notes and accounts; Westheimer died some two years before the institution of this action and left Sam and Dave Daube as the sole surviving partners of said partnership; Walter Neustadt is the legal executor of the estate of Max Westheimer, the administration of which is pending in the County Court of Carter County, Oklahoma; that over the two-year period the surviving partners endeavored to collect these notes and accounts and at the time of the institution of this action the greater part of the notes and accounts had been collected.
The surviving partners filed this action on the theory that they had been liquidating the affairs of the partnership as rapidly as possible and that since, as they alleged, the residue of the notes and accounts was more or less of questionable value, the partnership assets could be best liquidated by offering them for sale, as a whole, at public outcry to the highest bidder for cash, so that the affairs of the partnership could be successfully, properly, and timely wound up and the proceeds properly distributed. Under this theory, the surviving partners alleged that the assets had been reduced to such a point that their collection would henceforth be a slow and tedious job, requiring the filing of many suits which would require considerable expense, and unnecessarily delay the liquidation and closing of the affairs of said firm. They further alleged that such a sale under the direction of the court would be for the best interests of all parties concerned.
To the petition of the surviving partners, the executor filed his motion to dismiss on the grounds that the district court did not have jurisdiction of the subject matter. This motion was overruled. Thereafter a demurrer was filed by the executor on the grounds that the court had no jurisdiction of the subject matter and that said petition did not state facts sufficient to constitute a cause of action against the executor. This demurrer was overruled. The evidence of the surviving partners was thereafter heard by the court and at the close of the surviving partners' case the executor demurred for jurisdictional reasons. This demurrer was also overruled and the executor rested and stood on his demurrer. Exceptions to the above rulings of the court were properly saved.
The evidence on behalf of the surviving partners was to the effect that the firm of Westheimer and Daube had been engaged in the mercantile business for many years but that such business was terminated in June, 1938, prior to the death of Max...
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