Rumsey-Sikemeier Co. v. Bank of Aurora

• Decision Date: 06 December 1909
• Citation: 123 S.W. 75
• Parties: RUMSEY-SIKEMEIER CO. v. BANK OF AURORA et al.
• Court: Missouri Court of Appeals

123 S.W. 75

RUMSEY-SIKEMEIER CO. v. BANK OF AURORA et al.

Springfield Court of Appeals. Missouri.

December 6, 1909.

1. PARTNERSHIP (§ 180)—FIRM CREDITORS— RIGHT TO FOLLOW FIRM PROPERTY.

The right of a firm creditor to follow firm property and require that his debt be paid therefrom, to the exclusion of the debts of the partners, results from the fact that the partners have the right, as between themselves, to require the application of the firm assets to the payment of firm debts to protect themselves from personal liability, and the right, in the absence of fraud, is subject to the will of the partners.

2. PARTNERSHIP (§ 183)—FIRM CREDITORS— RIGHT TO FIRM PROPERTY.

A partner, who absconds without leaving any direction as to the disposition of his interest in the firm, gives the copartner, in the absence of fraud, power to dispose of the firm assets, and a firm creditor cannot subject firm property to the payment of his debts after the copartner had mortgaged the same to secure his individual debt.

3. CREDITORS' SUIT (§ 11) — NECESSITY OF JUDGMENT.

A firm creditor must obtain a judgment against the firm before he can follow firm assets in the hands of third persons holding under chattel mortgages, executed by a partner to secure his individual debts.

4. CREDITORS' SUIT (§ 11) — NECESSITY OF JUDGMENT — JUDGMENT AGAINST BUT ONE PARTNER.

A firm creditor, who obtains a judgment against one partner only, may not follow firm assets in the hands of third persons holding under a chattel mortgage, executed by such partner to secure his individual debts, though the copartner has absconded, but the latter must be brought into court so that the judgment will bind both partners.

Appeal from Circuit Court, Lawrence County; F. C. Johnson, Judge.

Action by the Rumsey-Sikemeier Company against the Bank of Aurora and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Plaintiff alleges: That Charles M. Miller and William R. Struby were partners, doing business under the firm name of Aurora Plumbing & Heating Company. That they owned a stock of goods located in the Randall block on East Olive street in Aurora, Mo. That plaintiff sold this firm a stock of goods of the value of $813.98, of which there is now due and unpaid $358.72. That this account is due and owing, and payment has been demanded. That the partners are insolvent—have no assets except the stock of goods of the partnership, and that said Charles M. Miller has diverted the partnership assets from the payment of the debts of the said partnership, to wit, the said debt of the said partnership to the plaintiff, and has subjected the same to the payment of the private debts of said Miller owing to the defendant Bank of Aurora and defendant Alice Miller, who are now in possession and control of the assets and holding the same under chattel mortgages executed by Miller to secure the private debts of Miller as aforesaid. That Struby has absconded and is now a nonresident of the state. He was not served with process, and did not appear at the trial. Judgment for defendant, and plaintiff appeals.

Oscar B. Elam, for appellant. McNatt & McNatt, for respondent Bank of Aurora. J. M. McPherson, for respondent Charles M. Miller.

COX, J. (after stating the facts as above).

The first question to be determined on...