Cotten v. Perishable Air Conditioners

PULLEN, J.,

pro

tem.

The defendant, Perishable Air Conditioners, was a copartnership composed of Cross and Carroll. Plaintiff, Charles D. Gotten, a minor, was an employee of said partnership, and on November 13, 1937, was severely injured while acting in the course of his employment.

Thereafter, an action was filed by Carroll against his partner Cross for a dissolution of the partnership, for an accounting, and for the appointment of a receiver. A receiver was appointed December 15, 1937, and on January 17, 1938, an order was made dissolving the partnership. On March 18, 1938, Charles D. Gotten applied to the superior court in the receivership proceedings for permission to sue the receiver. The receiver appeared and opposed the application on the ground that the liability arose prior to the receivership. The court thereupon denied permission to sue.

On the following day, an action was filed by Charles D. Gotten against Perishable Air Conditioners, a copartnership, and Cross and Carroll, individually, to recover for the injuries sustained, and summons and complaint were served upon Cross individually and on behalf of the partnership, the other partner being out of the jurisdiction. Default was entered against the partnership and Cross, followed by a judgment on April 14, 1938.

The receiver then moved to vacate the default judgment against the partnership. This motion was denied “without prejudice.” Thereafter, and after first obtaining an order of court for permission so to do, the receiver again moved the court to vacate the judgment against the partnership, on the principal ground that service on the partnership by service on a partner after the partnership had been dissolved did not give jurisdiction over the partnership. This motion was granted. Plaintiffs have appealed from the order granting it, and vacating the default and default judgment.

[577]

The question for decision is whether the service of process upon one of the former partners, after dissolution of the partnership and appointment of a receiver, was sufficient to vest the court with jurisdiction to render a valid and binding judgment against the partnership. Defendants take the position that as the partnership was dissolved by order of court prior to service of summons and complaint upon one of the partners, the court acquired no jurisdiction over the partnership because it no longer existed.