O'Brien v. O'Brien
Before: Chipman
Synopsis
Action for Accounting of Estate of Deceased Partner With Surviving Partners—Venue—Residence of One Partner — Change Disallowed.—An action for an accounting of the estate of a' deceased partner with two surviving partners may be brought in the county of the residence of one of them, and the other partner, though he is the managing partner, is not entitled to have the venue changed to the county of his residence, although the other partner calls himself a nominal defendant, and joins with the managing partner in asking for such change.
Id.—Merits of Action not Considered on Motion to Change Venue. The court will not go into the merits of the action, on a motion to change the place of trial.
Id.—Nature of Action—Both Defendants Necessary Parties.—It is held that it appears from the complaint of the administratrix that the nature of the action is such that both of the defendants are necessary parties thereto, as the surviving partners in the firm of which the deceased was a member, which was presumably dissolved by the death of one of the members of the firm, so that a full accounting of the affairs of the partnership is required, which cannot be had without the presence of both of the surviving partners.
CHIPMAN, P. J.
The purpose of this appeal is to review the order of the trial court denying defendants’ motion for a change of the place of trial.
[194]
The complaint is quite a voluminous document and only such of its averments will be stated as will show the nature of the action and serve to disclose the reasons for denying defendants’ motion.
It is alleged that in his lifetime plaintiff’s testate, Joseph A. 0 ’Brien, and defendants, Charles F. O ’Brien and William T. Garrett, were partners, under the firm name of 0 ’Brien & Garrett, doing business in the city of San Francisco as agents for the sale of land located in the republic of Mexico; that on December 28, 1908, the said Joseph died testate, naming defendant, his brother Charles, as executor of his last will; that he duly qualified as such executor, but, because of certain neglect of duty, he was removed from his office as executor, and plaintiff, who was sole devisee and widow of Joseph, was appointed special administratrix of the estate of deceased; that Charles, while such executor, had failed to account to said estate with respect to Joseph’s partnership interest in said firm and had failed to mention it in his inventory of said estate; that neither of defendants, as surviving partners, ever accounted to said executor of said estate and neither has accounted to plaintiff, although she has demanded of them that such accounting be made since her appointment as special administratrix of said estate; that ever since the death of said Joseph the “defendants continued in the possession of said partnership and partnership property and undertook the settlement of said partnership business.” The complaint then sets forth with some particularity the nature, extent and value of the business transacted, the profits of which amounted, as she avers, to over $25,000 and that there remains due to her testate, as a member of said firm, a large amount of money, the exact amount she is and has been unable to ascertain, “because of the incomplete condition of the accounts of said firm and of the failure and refusal of defendant, Charles F. O’Brien and of said William T. Garrett, to furnish to plaintiff information with reference to the accounts of said partners, with said firm and as to the amounts to which the estate of plaintiff’s husband, Joseph A. O’Brien, is entitled, as the share of said Joseph A. O’Brien in the net profits of said business, as is hereinafter more particularly set forth; that said defendants, as surviving partners of the partnership of O’Brien & Garrett, ever since the death of
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