Snow v. Burnett

• Decision Date: 26 October 1886
• Citation: 1 S.W. 634
• Parties: SNOW v. BURNETT.
• Court: Kentucky Court of Appeals

1 S.W. 634

SNOW v. BURNETT.

Court of Appeals of Kentucky.

October 26, 1886

Appeal from Wayne circuit court.

Action brought by R. Burnett against W.T. Francis, on promissory notes, and an attachment sued out and levied on the property of defendant. O. H. P. Snow filed his petition to be made a party, alleging that he was interested in the notes as a partner in business transactions with said Burnett.

J. A Brents, for appellant, O. H. P. Snow, J. Knox Frazer and Morrow & Newell, for appellee, R. Burnett.

HOLT J.

In this case one partner settled with the debtor of the firm, and took his note, payable to himself alone, for the amount which he claimed was coming to him, thus ignoring the right of his partner. He then sued out an attachment in an action brought upon the note, and upon other notes belonging to him individually, and attached all of the debtor's property. The lower court permitted the other partner to file his petition to be made a party to the suit, and which he also made his answer. He improperly attempted, also, to make it a cross-petition against the plaintiff. Section 96 of the Civil Code does not allow this by a defendant against a plaintiff. Subsequently a demurrer was sustained to it as amended, and the party declining to plead further, it was dismissed. This appears to have been done upon the ground that his remedy was against the debtor, and perhaps upon the additional ground that there was no allegation that the plaintiff or partner that had obtained the note was insolvent.

It is admitted by the demurrer that the debt belonged to the firm and that each partner had an interest in it. Manifestly, one of them was not bound to sit idly by while the other seized all of the debtor's property in payment of what he claimed was his part of the firm asset. This would have been a recognition of the claim. Nor should one partner be required to resort to a second action against the other because the latter is solvent, when, in an action already pending by him against the debtor, the right to whatever may be recovered can be settled. The pleading, as amended, was somewhat informal, but must be regarded as substantially asking a settlement of the firm matters, and the ascertainment of the right to whatever might be collected upon the note. Taking it as true, which we must do upon demurrer, the party had an interest in the note, and therefore had a right to be made a defendant, and to...