Ribero v. Callaway

NOURSE, P. J.

Frank L. Leard and Earl W. Callaway, individually and as copartners, appeal from two orders charging the interest of Clyde E. Callaway in a partnership business operating the “Montana Club and Hotel, Ltd.” at San Francisco, and composed of said appellants, said Clyde E. Callaway and M. Lerner with the payment of the unsatisfied portion of a judgment in favor of respondents Ribero and appointing a receiver pursuant to section 2422 of the Civil Code. The first order appealed from is a minute order of July 1, 1947, reading: “H. S. motion to appoint receiver and to charge partner’s interest granted.” The second order is a formal order dated July 24, 1947, and filed August 20, 1947, containing the charging order with description of the interest charged and the appointment of W. Neil Walsh as receiver with statement of the scope of his authority.

Appellants denied that the judgment debtor C. E. Callaway was a partner or had any interest in the Montana Club and Hotel. The judgment debtor himself did not oppose the motion for the charging order and the appointment of a receiver and does not appeal.

No oral evidence was introduced. Three affidavits to be detailed later, and a file No. 26836 containing the certificate

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of Limited Partnership of Montana Club and Hotel Limited, with Affidavit of Publication were transmitted by the clerk below to this court as exhibits. It does not appear from the clerk’s transcript that said file No. 26836 was received in evidence, nor is it marked by him as such. However respondents state in their brief that the court received said file as part of the proof introduced in support of respondents’ motion and appellants do not deny this. As the parties must have considered the file to be in evidence we shall also consider it to have been so.

(O’Callaghan

v. Bode, 84 Cal. 489, 497 [24 P.269].)

With respect to the disputed copartnership of the judgment debtor, an affidavit of respondent James Ribero only states that Clyde E. Callaway “is a copartner” in “Montana Club and Hotel Ltd.” The certificate of limited copartnership of Montana Club and Hotel Limited certifies that the partnership was formed bn January 10, 1946, by appellants and said Clyde E. Callaway as general partners, each having contributed $4,500 in cash, and M. Lerner 'as limited partner, having contributed one dollar. The partnership is to continue for a period of 10 years unless sooner terminated by the mutual written consent of all partners. The profits, except for one dollar yearly to be paid to Lerner, shall be divided equally between the general partners. The file No. 26836 does not show any cancellation or amendment pursuant to section 2500 of the Civil Code. An affidavit of appellants states in substance that the'limited partnership agreement certified was purely nominal to protect certain interests of M. Lerner in liquor licenses and that actually as between appellants and the judgment debtor said certificate was superseded by another agreement of the same date, signed by appellants and Clyde E. Callaway only, according to which the judgment debtor advanced approximately $10,500, and would remain a partner and entitled to an equal share in the profits only until this capital investment would have been paid off out of the profit shares of the appellants. However, thereafter it was agreed that appellants would pay off the money advanced as speedily as they could raise it, without regard to their share of the profits. The final repayment took place on February 28, 1947, and on that date the judgment debtor gave a release in full of his interest in the Montana Club and Hotel Limited. It is conceded, however, that the liquor licenses are still in the name of all partners certified. An affidavit of Gordon W. Andrus accountant of the Montana Club and