Steen v. Hendy

TEMPLE, C. This appeal is from the judgment, with a bill of exceptions. The action was brought to obtain a dissolution of an alleged partnership, to' have an account taken, and for other relief. It was commenced March 11, 1876. At the first trial plaintiff recovered judgment, and defendants appealed, and that appeal was disposed of here [917]October, 1889: 80 Cal. 636, 22 Pac. 401. The facts of the case appear in the opinion then rendered. It was found that the partnership—if the relations between the parties could be so called—had ended before the suit was brought, leaving in Hendy’s hands property in which Steen had a contingent interest, and which Hendy continued to sell from time to time after this suit was begun. By stipulation, however, it was found that Hendy had in his hands something more than $10,000, which belonged to Steen. The question left to be determined was what interest or what share of the profits of Hendy’s business Steen was entitled to. After the remittitur was filed from this court, Steen amended his complaint, made for the first time the corporation a defendant, and claimed that Hendy had actually realized a large amount of money from the use of the trust funds which he, Steen, was entitled to recover. The corporation was created September 29, 1882, and it was made a party to this suit November 26, 1889. The supplemental and amended complaint, by which the corporation was brought in, charges, in effect, that Hendy owned all the stock of the corporation, and that it was organized to carry on Hendy’s business, to hide plaintiff’s property, and to defraud plaintiff. A money judgment was demanded against both defendants. Soon after, Hendy paid the amount found due, exclusive of interest, and the cause was referred to a referee to try, with directions to report findings and a judgment. While the trial was in progress—October 21, 1891 —Hendy died. The record does not show when letters of administration were issued in the estate of Hendy, but it appears by order made August 10, 1892, that the death of Hendy was suggested by plaintiff, and it was ordered that the case be continued in the names of the executors; and the bill of exceptions recites that: “At the first session after his death and said substitution, to wit, on the nineteenth day of November, 1891, said defendants objected to further proceeding with the trial or the taking of any further testimony in the case upon the ground that the claim upon which the action is based has not been presented for allowance to the executors and executrix of Joshua Hendy, deceased; but the referee, notwithstanding such objection, proceeded with said trial and the taking of testimony in the case, to all of which the defendants duly excepted, and the said trial and taking