Scannell v. Felton

• Decision Date: 05 December 1896
• Docket Number: 8938
• Citation: 57 Kan. 468,46 P. 948
• Parties: RICHARD SCANNELL v. S. K. FELTON et al
• Court: Kansas Supreme Court

46 P. 948

57 Kan. 468

RICHARD SCANNELL v. S. K. FELTON et al

No. 8938

Supreme Court of Kansas

December 5, 1896

Decided July, 1896.

Error from Republic District Court Hon. F. W. Sturges, Judge.

DISMISSED.

Dismissed.

A. H Ellis and Caldwell & Ellis, for plaintiff in error.

W. T Dillon and J. W. Sheafor, for defendant in error S. G Stover.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.

This is a proceeding to reverse a judgment of the District Court of Republic County rendered in favor of S. G. Stover and C Perry against Richard Scannell for $ 5,500 on a contract assigned to them by S. K. Felton, under which Felton had partially constructed the foundation for a Catholic college-building at Belleville. The defendant Scannell was bishop of the diocese, and the land on which the foundation was built had been deeded to him. A motion to dismiss the proceeding in this Court is interposed. It appears that Stover & Perry were engaged in the business of banking, as partners, at Belleville; that on the 23d day of August, 1893, which was after the petition in error was filed in this Court, C. P. Carstensen was, on the application of the Attorney General, duly appointed receiver to take charge of the effects of their bank; that, in a few days thereafter, he qualified and took possession, and has ever since continued in the possession of the assets of the partnership. It also appears that C. Perry, one of the partners, died in July, 1895; that he left a will, which was duly probated, but that the executrix named therein never qualified, and no other executor or administrator has ever been appointed in her stead. On the 7th of October, 1896, the plaintiff in error filed in this Court a motion suggesting the death of Mr. Perry, and asking that it be stated on the record, and that the cause proceed against S. G. Stover as surviving partner. Counsel for the plaintiff in error contend that, under the circumstances stated above, the surviving partner has full power to represent the interest of the deceased partner as well as his own; that all parties necessary to a determination of the controversy are now in court; and that no formal revivor against Stover as surviving partner is really necessary, he being here to speak for his own interests, and being, in fact, the survivor. On the other hand, it is urged that a revivor against Stover as surviving partner was necessary, and that more than one...