Stone v. Stone

• Decision Date: 09 April 1974
• Docket Number: No. 6052,6052
• Citation: Stone v. Stone, 293 So.2d 523 (La. App. 1974)
• Parties: Mrs. Sallie GUSTINE, widow of Lawrence A. STONE v. Lawrence A. STONE, II.
• Court: Court of Appeal of Louisiana

Page 523

293 So.2d 523

Mrs. Sallie GUSTINE, widow of Lawrence A. STONE v.Lawrence A. STONE, II.

No. 6052.

Court of Appeal of Louisiana, Fourth Circuit.

April 9, 1974.

Rehearing Denied May 10, 1974.

Henican, James & Cleveland, C. Ellis Henican, New Orleans, for plaintiff-appellee.

Porteous, Toledano, Hainkel & Johnson, Geoffrey H. Longenecker, New Orleans, for defendant-appellant.

Before REDMANN, STOULIG and BOUTALL, JJ.

STOULIG, Judge.

Appellant, Lawrence A. Stone II, has prosecuted this appeal to question, inter alia, whether judgment may be rendered against a partnership that was not made a defendant to the action until after the presentation of evidence but prior to its submission to the jury.

Plaintiff, Mrs. Sallie G. Stone, was awarded a judgment condemning The Lawrence A. Stone Agency, a partnership, and its two individual partners, Langdon and Lawrence A. Stone II, to pay $600 per month for life in accordance with this provision in a contract entered into between plaintiff and her sons:

'5.(a) The partnership shall compensate Mrs. Sallie G. Stone for the use of the name 'The Lawrence A. Stone Agency' and for services based upon the use of her solicitor's license at a monthly rate of $600.00, payable on the basis of $300.00 on the first and $300.00 on the fifteenth of each month, the amount to be paid without any deductions therefrom and said payments to continue during her natural life or until the termination of this agreement, whichever occurs first. * * *'

She initially filed suit against Lawrence II, only, because her son Langdon had previously acknowledged and was paying $300 per month representing his half of the alleged $600 monthly payment due.When Lawrence Stone II excepted to plaintiff's failure to join his brother on the ground he was an indispensable partydefendant, plaintiff joined Langdon Stone as a defendant even though the nonjoinder exception had been overruled.On November 2, 1972, two days before this three-day trial started, defendant filed alternative peremptory exceptions claiming (1) if plaintiff filed suit in the capacity of a partner, her action was premature because the partnership had not been dissolved or (2) if she sued as a creditor, she could not maintain a cause of action against Lawrence Stone as a partner without joining the partnership entity as a partydefendant.

The exception of prematurity was based on pending litigation brought by Lawrence Stone II to dissolve and partition The Lawrence A. Stone Agency.In that caseLangdon Stone and the partnership were cited as defendants and filed an exception of prematurity, based on a clause in the partnership agreement requiring that any dispute as to operational procedure must first be submitted to arbitration before resorting to litigation.This exception, maintained by the trial court and this court(Stone v. Stone, 281 So.2d 177(1973)), was overruled by the Supreme Court in a decision rendered March 25, 1974 in Stone v. Stone, La., 292 So.2d 686(1974).The Court held the right to demand dissolution of the partnership is a matter of law, not subject to arbitration, and because this right was not at issue in the pleadings, the matter was remanded for further proceedings consistent with the guidelines set forth in its opinion.Thus the merits of the action to dissolve and the effective date of the dissolution is yet to be adjudicated.

On November 6, 1972, after the conclusion of the presentation of evidence and prior to the charge to the jury, attorney for plaintiff advised the court:

'I want to file a supplemental and amended pleading which is provided for by the Code of Civil Procedure.'

On the same date the trial judge signed an order authorizing the filing of plaintiff's 'Supplemental and Amended Petition to Conform to the Evidence.'This petition had a two-fold purpose pleading judicial estoppel in bar of Lawrence Stone's defense that the partnership is still in existence; and alternatively, to join the partnership as a partydefendant.¹

It must be noted that the pleading did not request nor was service of citation ever effected on the partnership.A copy of the petition was handed to the attorney for Lawrence Stone and a copy given to Langdon H. Stone personally.This purported service was not made on the defendants in their representative capacity as partners but apparently as individuals.The record does not contain a waiver of citation by the partnership or anyone acting in its behalf.

On November 7, 1972, judgment in the instant case was rendered in conformity with a jury verdict casting the partnership, The Lawrence A. Stone Agency, in judgment for $600 per month Or the individual partners for $300 per month each for the remainder of plaintiff's life.

Under the...