Ranney-Alton Mercantile Co. v. Hanes

• Decision Date: 07 February 1900
• Citation: 9 Okla. 471,1900 OK 9,60 P. 284
• Parties: THE RANNEY-ALTON MERCANTILE COMPANY v. T. C. HANES AND J. W. JOHNSTON.
• Court: Oklahoma Supreme Court

1900 OK 9

60 P. 284

9 Okla. 471

THE RANNEY-ALTON MERCANTILE COMPANY v. T. C. HANES AND J. W. JOHNSTON.

Supreme Court of Oklahoma

Decided: February 7, 1900

Error from the District Court of Oklahoma County; before James R. Keaton, District Judge.

Syllabus

¶0 1. APPEAL TO SUPREME COURT--Necessary Parties--Summons. Where an appeal is taken from a decision of the district court, and it appears that the parties in whose favor judgment was rendered were in fact partners, and the property in controversy in the case in the district court was partnership property, the service of the summons in error upon one partner perfects the appeal, notwithstanding the pleadings may be entitled in the individual names of the partners. And in case of the death of one of said partners pending the appeal to this court, it will not be necessary to make his personal representatives parties to the action.

2. ACTION IN ATTACHMENT--Form of Verdict. Where in an action of attachment parties interplead, claiming the right to the property levied upon by writ of attachment, and where the property has been sold and converted into money by the order of the court, and the money brought into court, then a verdict of the jury in the alternative, for the possession of the property, or the value thereof, in case the property cannot be had, is not necessary. A money judgment in such case is sufficient.

3. VERDICT--Not Sustained By Weight of the Evidence. Where, on an inspection of the record, it is apparent to the court that the evidence does not reasonably sustain the verdict of the jury, this court will set such verdict aside.

R. N. McConnell and R. G. Hays, for plaintiff in error.

T. G. Chambers and Howard & Kearful, for defendants in error.

STATEMENT OF THE CASE.

On the 1st day of October, 1895, the Hanes Grocery company was indebted to the plaintiff in error in the sum of $ 1,621.23 upon an account for merchandise sold by the plaintiff in error to the said Hanes Grocery company, between the 18th day of June, 1895, and the 1st day of October, 1895, inclusive of said days.

On said 1st day of October, 1895, the plaintiff in error commenced their action in the district court of Oklahoma county, Oklahoma Territory, against the said Hanes Grocery company, to recover said amount, in which petition the defendant was named as the Hanes Grocery company, composed of R. L. Hanes, et al., which petition is found on page 6 of the record. At the same time plaintiffs filed their affidavit for attachment, together with their bond for attachment and costs, and order of attachment to issue against the property of the said Hanes Grocery company, and placed the same in the hands of the sheriff of Oklahoma county for service. And on the same day, said order of attachment was levied upon the stock of goods claimed by the plaintiff in error as belonging to the said Hanes Grocery company.

On October 4, 1895, T C. Hanes and J. W. Johnston, defendants in error herein, served upon the attorneys for plaintiff in error a notice that they would interplead in said action and claim the goods taken on said order of attachment, and on the same day, October 4, 1895, the said T. C. Hanes and J. W. Johnston filed in said court their interplea under section 3918, of the Statutes of Oklahoma, of 1893, claiming said property attached in said action, and asking judgment that they be declared the owners of said property and entitled to the immediate possession thereof, and in default of a return thereof they have judgment for the sum of $ 1,500, the alleged value of said property, and for costs, which interplea is found on pages 28, 29 and 30 of the record.

Afterwards, and on the 19th day of October, 1895, on the application of plaintiff in error, an alias order of attachment was issued in said case, and placed in the hands of the sheriff of said county for service, and on the same day the said alias order of attachment was levied upon the books, accounts and notes claimed to belong to the said Hanes Grocery company.

On the 23d day of October, 1895, plaintiff in error filed its answer to the interples of T. C. Hanes and J. W. Johnston, which is found on page 38 of the record. And afterwards on the day of , 1895, the said plaintiff in error filed its application for an order to sell the goods attached in said action; and the said interpleaders, on the 25 day of November, filed their objections thereto, and on the 6th day of January, 1896, the court made an order for the sale of all the property taken on the order of attachment, which is found on pages 52 and 53 of the record, ordering said goods to be sold for cash, and the proceeds to be paid into court to await the action of the court. And said goods were sold in pursuance of said order, to the Ranney-Alton Mercantile company for the sum of $ 420, on the 21st day of January, 1896, and the money paid into court.

On the 7th day of November, 1895, the Hanes Grocery company being in default for want of answer, the attachment in said action was sustained, and a judgment was rendered in favor of plaintiff in error and against the said Hanes Grocery company, for the sum of $ 1,621.23, and cost of suit. The order sustaining said attachment and entering said judgment is found on pages 61 and 62 of the record.

On the 11th day of November, 1895, the defendants in error filed a supplemental interplea, which is found on pages 64, 65, 66, and 67 of the record, in which supplemental interplea they claimed the ownership of the notes and accounts taken on the alias order of attachment, and alleged the value thereof to be $ 1,500, and asked judgment for a return of said notes and accounts, or their value in case the same cannot be returned.

And afterwards, and on November 2, 1896, by leave of court, the plaintiff in error filed supplemental answer to the interplea, and supplemental interplea of said defendants in error, in which they deny generally all the allegations of said interplea and supplemental interplea, and further allege that T. C. Hanes was a member of said firm of Hanes Grocery company, and a partner with R. L Hanes, when the said Hanes Grocery company purchased the goods of plaintiff in error, and was so a partner at the time that the said defendants in error pretended to purchase said stock of goods, notes and accounts from the said Hanes Grocery company, also alleging that said pretended sale was made for the purpose and with the intent, on the part of R. L. Hanes and T. C. Hanes and J. W. Johnston, to defeat, hinder, delay and defraud the creditors of the said Hanes Grocery company, which amended and supplemental answer is found on pages 74, 75, 76, 77 and 78 of the record.

On January 2, 1897, the interpleaders filed their reply to said amended and supplemental answer, which is found on page 81 of the record, in which they deny generally all the alegations in the amended and supplemental answer.

And afterwards, and on the 2d day of April, 1897, said cause came on to be heard on the issues joined in said interplea, answer thereto, and reply to said answer, before a jury.

IRWIN, J.:

¶1 In this case, the defendants in error, being the interpleaders in the district court, filed a motion to dismiss this appeal, for the reason that said petition and said cause were filed in this court after the death of T. C. Hanes, one of the defendants in error, and and that there has been no service of summons in error herein; the summons in error being served on the defendant in error, Johnston, only. If the interpleader in this case had been filed, and the case conducted in the district court by the interpleaders, Johnston and Hanes, in their individual capacity, this objection would be well taken, and the cause would necessarily have to be dismissed, but an inspection of the record will show that while the petition in interpleader is entitled in the individual names of the interpleaders, the body and context of the instrument will show that it was really and in fact filed by and on behalf of the partnership of Hanes & Johnston, and that the recovery of the property was claimed by the partnership of Hanes & Johnston; and, by our statute, section 3538, Laws of 1893, under the title of "Partnership," provision is made that on the death of a partner, the surviving partner succeeds to all the partnership property, whether real or personal, in trust, for the purpose of liquidation, and section 1386, of the statute, provides that the surviving partner shall settle all partnership business. These sections of our statute are identical with sections of the California and Nevada statutes, as well as the statutes of several other states, and have frequently been construed by the supreme courts of other states, and the holding has universally been that the surviving partner is the proper party to sue in all cases touching the unsettled affairs of the partnership. (Berson v. Ewing et al. 23 P. 1112; Reese v. Kinkead, 30 P. 1087; Friermuth v. Friermuth 46 Cal. 42; Matney v. Gregg Bros. Grain Co. 19 Mo. App. 107.)

¶2 In this case the court says: "On the death of a partner, a cause of action in a suit by the firm on a contract, survives to the surviving partner, who is the only necessary party thereto."

¶3 Hence, we think, under the facts in this case, as developed in the pleadings and the evidence, that the service of summons on the defendant in error, J.W. Johnston, was sufficient.

¶4 The plaintiff in error in this case asks for a reversal for the reason that the verdict of the jury should have been in the alternative, for the reason of the specific property in the said petition described, or, in the event that it could not be so returned, for the value thereof. That is, that the jury returned a money verdict, instead of a verdict for the delivery of possession of the specific property described in the petition. We do not think this is reversible error. Section 4063 of the Statutes of Oklahoma, 1893, provides that in possessory actions, judgment "may be for the...