Ross v. Carson

• Citation: 32 Mo.App. 148
• Parties: JOHN W. ROSS, Administrator of JOHN CARSON, Deceased, Appellant, v. W. H. CARSON, Respondent.
• Decision Date: 29 October 1888
• Court: Court of Appeals of Kansas

32 Mo.App. 148

JOHN W. ROSS, Administrator of JOHN CARSON, Deceased, Appellant, v. W. H. CARSON, Respondent.

Court of Appeals of Missouri, Kansas City.

October 29, 1888

Appeal from Polk Circuit Court. --HON. W. I. WALLACE, Judge.

AFFIRMED.

The case is stated in the opinion.

T G. Rechow, for the appellant.

(1) The only question presented by this record is as to whether, upon the pleadings in this cause, the circuit court had jurisdiction. The contention of defendant that the circuit court has no jurisdiction over the subject-matter of this action is not tenable. This is an action by the administrator of deceased partner against the survivor for money advanced from time to time for the benefit of survivor, and merely asks an ascertainment of this amount and a judgment against the defendant. This is not a partnership debt, and the authorities cited by respondent have no bearing on the question at issue in this case. But if this court should come to a different conclusion, then we submit that all these decisions were rendered under statutes where the probate court had exclusive jurisdiction. See Sess. Acts, 1866, p 85, sec. 6. But since the act of 1877 establishing an uniform system of probate courts, the language in section six, Acts 1866, " shall have exclusive original jurisdiction," is dropped. The legislature evidently, in view of the decisions, intended to exclude the " exclusive original jurisdiction" conferred by the last-named act. That it has been so understood by the courts see Simpson v. Schulte, 21 Mo.App. 639; Cox v Volkert, 86 Mo. 505. In these cases, administrators were joined with other parties in circuit court. (2) That a court of equity is the proper tribunal to settle matters of account between partners needs no citation of authorities, but see Scott v. Caruth, 50 Mo. 120; Church v. McElhiney, 61 Mo. 540; Bond v. Bemis, 55 Mo. 524; Church v. Robberson, 71 Mo. 326; Feurt v. Brown, 23 Mo.App. 332; Story's Eq. [Ed. 1853] sec. 666. (3) The jurisdiction of the probate court is entirely inadequate to grant the relief to which plaintiff shows himself entitled in his petition.

John D. Abbe, for the respondent.

(1) The court committed no error in dismissing plaintiff's bill. The bill was filed, as shown by the evidence, less than a year after the death of John Carson, whose administrator brings the suit. Under the law, plaintiff is bound and held to know that the partnership estate was in administration and that defendant was the administrator. R. S. 1879, secs. 57, 62, 63. If plaintiff has any claim, it is, in the first instance, a claim against the partnership estate. See Leabo v. Renshaw, 61 Mo. 294; Story on Partnership [[[[[[5 Ed.] sec. 348 a, and note 4 on said section. (2) By virtue of section 68, of Revised Statutes, administration of partnership estates shall in all respects conform to the administration of individual estates, except where there may be some special provision made in the statute governing partnership administrations; and the same section provides that a partnership administrator shall perform the same functions and duties, and be governed by the same limitations, restrictions, and provisions, etc., as other administrators. Until the partnership estate is fully settled, it cannot be determined how much shall be paid to either partner, either on account of a claim against the partnership, or by way of distribution. If the estate on settlement prove to be insolvent, the surviving partner may be compelled to pay to creditors an amount largely in excess of what the deceased partner has paid in; and, if this action is sustained, and judgment is rendered against defendant for any sum, he will be in the condition of having paid on behalf of the partnership more than the deceased paid, and yet having a judgment rendered against him and in favor of said partner. (3) Under the statute, the probate court has jurisdiction, among other things, over settling accounts of executors and administrators, and by section 222 every administrator is required to make his settlements with the probate court. And, although in section 1176 the jurisdiction of the probate court is not expressly declared to be exclusive, yet, since our administration law has been in force, the case cannot be found in which the jurisdiction of a court of equity has been sustained or sanctioned as being original over any of the matters confided by section 1176 to the jurisdiction of the probate court. To sustain the jurisdiction of the court in this case will be to compel the surviving partner as an individual to make in this court a full showing--in fact, a full settlement--of all partnership matters, which is unreasonable and impossible. And then, at the end of his administration, he is required by law, as administrator, to make in the probate court a full and complete settlement, which involves a full and complete disposition of all partnership property. This will require substantially the same trial and accounting, so far as the same can be done, in two different courts, and neither court will be bound by the action of the other. (4) In Griswold v. Johnson, 22 Mo.App. 466, the court substantially holds that if a party has a remedy in the probate court, he must resort to that court, and must exhaust his legal...