Replogle v. Neff
| Decision Date | 14 January 1936 |
| Docket Number | Case Number: 24294 |
| Citation | 176 Okla. 333,1936 OK 34,55 P.2d 436 |
| Parties | REPLOGLE v. NEFF |
| Court | Oklahoma Supreme Court |
¶0 1. PARTNERSHIP - Joint Adventures - Membership - Agreements or Articles Need not Be in Writing.
A partnership, or a joint adventure, may consist of individuals, or of individuals and another partnership or joint adventure. The agreements or articles need not be in writing.
2. SAME - VENUE - Equity Action by One Member Against Others for Declaration of Partnership or Joint Adventure and Accounting Held Transitory Action.
A bill in equity, filed by one member of an alleged partnership or joint adventure against other members thereof, for a declaration of the partnership or joint adventure and for an accounting, is a transitory action, the venue of which is governed by section 117, C. O. S. 1931, that is, it may be brought where one or more of the defendants may be served with summons, and summons may issue to other counties for service on other defendants.
3. SAME - Rights of Parties in Real Estate as Partnership Assets Determinable Though Situate in Another County.
If, in such an action, it is alleged that an estate in certain real property is a part of the partnership assets, and such allegation is traversed, this forms an issue for trial by a court of equity, as an incident to the primary relief prayed for in the bill, and the rights of the parties in the real property may be determined, though the real property does not lie in the county where the court sits.
4. SAME - Right of One Defendant by Cross-Petition Against Another to Assert That Property Held by Latter and Alleged by Plaintiff to Be Assets of Main Partnership Is Also Assets of Smaller Partnership or Joint Adventure - Determination of Rights.
Where one member of a partnership or joint adventure sues other alleged members thereof, it is competent for one of the defendants sued to assert by cross-petition against another defendant that the property held by such other defendant, and alleged by plaintiff to be a part of the assets of the main partnership, is really also assets of a smaller partnership or joint adventure, and to ask for a determination of his rights and an accounting as against his codefendant and other parties to the action, for this is a necessary incident to the main action started by plaintiff, and equity will give complete relief to avoid multiplicity of suits.
5. SAME - Right in Accounting Proceeding to Pursue Assets in Hands of Third Party After Fraudulent Transfer of Same by Defendant.
If, in an accounting proceeding, A seeks an accounting, and a judgment, against B, and it develops that B has fraudulently transferred some or all of the assets to C, C may be made an additional party defendant, if he is not already in the case, and A may pursue the trust fund or trust assets in the hands of C and have judgment against C for so much of the trust assets as have improperly passed to him from B.
Appeal from Superior Court, Okmulgee County; J.H. Swan, Judge.
Action by Charles R. King against V.W. Miracle. D. Replogle, L.E. Neff, and others for declaration of a partnership and an accounting. On cross-petition Neff had judgment against Miracle and Replogle, from which they appeal. Affirmed.
A.M. Beets, for plaintiffs in error.
J.C. Stone and William Neff, for defendant in error.
¶1 This is an equity proceeding commenced in the superior court of Okmulgee county on February 16, 1931, by Charles R. King against V.W. Miracle, D. Replogle, Carter Oil Company, Indian Territory Illuminating Oil Company, S.W. Brown, Jr., and L.E. Neff.
¶2 Plaintiff alleged the existence of a partnership between him and Miracle, and alleged that some of the partnership property had been conveyed to defendants Replogle and Neff. Plaintiff prayed for a declaration of the partnership, an accounting, and a dissolution. The action was brought in Okmulgee county, where service was had upon Miracle and Drown. Replogle was served with summons in Oklahoma county. Defendant Neff residing in Oklahoma county. Some of the alleged assets of the alleged partnership consisted of oil and gas royalty interests and land located in Seminole county.
¶3 Without waiting to be served with summons, Neff filed an answer in the case and a cross-petition against Miracle and Replogle, and the plaintiff and all other defendants, saying that he, Neff, had a joint adventure arrangement with Miracle in regard to acquiring some of this royalty interest in Seminole county, by which, for his services and expenditures in that connection, he was to have certain fractional interest therein that although Miracle may have acquired this royalty for the benefit of the partnership, or joint adventure, which Miracle had with plaintiff King, the members of the main partnership would have to recognize his, Neff's, interest in this property, and Neff prayed for a finding and declaration as to the existence of a partnership or joint adventure between him and Miracle and an accounting with reference to that part of the property involved in their subpartnership.
¶4 On March 2, 1932, plaintiff dismissed his petition with prejudice: thereupon, Miracle and Replogle asked the court to dismiss Neff's cross-petition, alleging that it was not germane to the original petition filed by plaintiff King, and that King's petition having been dismissed, there was no case pending in which the cross-petition could be maintained. This motion was overruled. Replogle then pleaded to the cross-petition of Neff, setting tip the same matters which he and Miracle had set up in their motion, and also raising the point that Neff sought by his cross-petition to have the rights of the parties adjudicated in, and with reference to, real estate located outside of Okmulgee county, which real estate he said had already been deeded to him by Miracle; that the court was, for this additional reason, without jurisdiction to entertain Neff's cross-petition. In this plea, he denied that he or Miracle owed Neff anything and asked for affirmative relief against the cross-petitioner, that is, that he "have judgment against the cross-petitioner quieting title against the said defendant and cross-petitioner to all of the interests inherited by Wiley Taylor, and others, in and to the allotment above described, and for such other and further relief as may be just and equitable in the premises."
¶5 The issues being thus joined, the matter was tried to the court, without a jury, and resulted in judgment in favor of Neff, determining and declaring his interest in the subpartnership or subjoint adventure, and ordering paid to him certain moneys which had originated from his interest, part of which was still held by the oil company defendants, and a part of which had improperly passed from the hands of defendant Miracle to the possession of defendant Replogle. The judgment was for Neff to recover this sum, $1,774.48, with interest, from Replogle, and adjudging that Miracle and Replogle should pay the costs. From this judgment Miracle and Replogle appealed, their appeal being lodged in this court on December 2, 1932. They superseded the judgment by supersedeas bond, appearing in the record at page 206, and defendant in error asks that, in the event of affirmance, judgment be rendered against the sureties on that supersedeas bond.
¶6 In seeking to have this judgment of the trial court reversed, plaintiffs in error, Replogle and Miracle, do not utter one word against the righteousness and correctness of the judgment as rendered, do not question the sufficiency of the evidence to support the judgment, and we do not see how they could plausibly question the sufficiency of the evidence or the correctness of the judgment as rendered, for the record fully supports the judgment, and, in our opinion, does full justice and equity between the parties. They contend simply that the superior court of Okmulgee county was without jurisdiction to hear and determine the issues involved; contending that the court was without jurisdiction because plaintiff dismissed his original petition in the case; because Neff sought to litigate matters between him and defendant Miracle with reference to a smaller partnership, or joint enterprise, a kind of subpartnership with reference to property originally drawn into the case by plaintiff's petition because the accounting sought by Neff in his cross-petition had reference to oil and gas royalty rights in, or fruits from, land located in another county, and because the trial court rendered personal judgment against Replogle for a certain sum of the moneys found due to Neff in the accounting, which moneys had, in some way, passed into the hands of Replogle, which matters plaintiffs in error say were not germane to the original action filed by King.
¶7 In seeking to sustain the judgment of the trial court, the defendant in error contends that the cross-bill of Neff was germane to the original action, that the dismissal by plaintiff did not destroy the jurisdiction of the court to hear Neff's cross-complaint, that the judgment did not, in effect, determine interests in real estate in another county, but was limited to determining the interest of the parties in royalty moneys accrued from such real estate, and that Neff was entitled to personal judgment against Replogle on the theory of following a trust fund which had improperly passed from the original trustee to a third person.
¶8 We are of the opinion that the judgment of the trial court should be affirmed, that attacks thereon by plaintiffs in error are all without merit, and that the theories upon which the defendant in error seeks to support and sustain the judgment of the trial court are well founded. In sustaining the judgment of the trial court, however, we have found it advisable to explore some fields of law and equity which were not mentioned by the court or counsel in the trial of this case and are not discussed or developed in...
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