McKay v. Joy

BELCHER, C. C. Plaintiff and Jarius A. Joy were partners in the business of farming. In January, 1883, Joy died, and on the first day of February the defendant was appointed administrator of his estate. It is alleged in the complaint that at the time of his death there was personal property belonging to the partnership of the value of nearly five hundred dollars, and that the partnership was indebted to the plaintiff for money paid, laid out, and expended for boarding Joy and the hands on the ranch, and for the services of Mrs. McKay in cooking, washing, etc., in a sum exceeding one thousand dollars. It is also alleged that the claim on which this action is brought was duly presented to the defendant, as administrator, for allowance, on the thirtieth day of April, 1883, and was by him rejected on the first day of May, 1883. It appears from the bill of exceptions that in February, 1883, all of such personal property was taken from the possession of the plaintiff and delivered to the defendant by the sheriff, under a writ of replevin, but it does not appear by whom or why the action of replevin was commenced, or what became of it.

This action was commenced in November, 1883, and the prayer of the complaint is that an accounting be taken of all the said copartnership dealings and transactions from the commencement thereof, and of the money and of the effects received and paid by the plaintiff and the said Jarius A. Joy, respectively, in relation thereto; that the property of the firm be divided between the plaintiff and the estate of the said Joy, according to their respective interests; that the defendant, as administrator, be adjudged to pay the plaintiff the amount which shall appear or be found to be due him after the accounting and full settlement of said partnership [641]business; and for such other and further relief as may be just, with costs of this action.

When the case was on trial it was admitted by the plaintiff and his counsel in open court that his present cause of action was based upon a claim which had never been presented to the defendant as administrator for allowance. Thereupon counsel for defendant moved the court for a nonsuit and dismissal of the action upon the ground that the claim was one which must be presented for allowance and rejected before any action could be maintained upon it. The court granted the motion, and the appeal is from the judgment of nonsuit.

There was only one question presented by the appeal, and that is whether the plaintiff could maintain his action without first presenting his claim to the administrator for allowance. As surviving partner the plaintiff had the right to continue in possession of all the property of the partnership, settle its business, pay its debts out of the assets if sufficient, and wind up its affairs: Code Civ. Proe., sec. 1585. If before this was accomplished an action was commenced to take from him the possession of the property, he could have made a successful defense to it, and thus have maintained his rights ; and if, without action, the property was tortiously taken from him, he could have recovered it back.