Pearce v. E. M. Bruce & Co. , 38 Ga. 444 ( 1868 )

McCay, J. '

If this were an action at law, by the plaintiff, founded upon his special property in the cotton, the subject of dispute, the authorities are abundant that he might sue alone. A bailee of goods, on store, may sue a stranger who interferes with them, for the wrong to his possession.

1. But this is a bill in equity, charging that the defendants had got possession of the cotton, sent it out of the State for sale, and were about to pay the proceeds, when finally sold, to James Pearce, and it prayed an injunction against this disposal of the proceeds, and that the defendants should account with the plaintiff's for the proceeds.

2. This is altogether a different thing from a proceeding at law, based upon the special property of the plaintiff. It is a regular proceeding in equity for an account and settlement between the parties in relation to the subject matter of the dispute. And it is well settled, that, in equity, in such cases, all parties in interest must be before the Court. Equity will not do justice by halves. It will grasp the whole case, and settle it. The true owners of the cotton are directly interested in this ciecownt, and must be made parties, or some good reason shewn why this cannot be done. The special interest of the complainant, and his liability to the true owners on his receipts, gives him sufficient interest to be a party, and the bill may be amended so as to include the others.

We may remark, that equity would have no jurisdiction of this transaction at all on the tort alone. It is only because an account is prayed that Chancery Avill interfere, and the parties must, therefore, be such as have a right to pray an account. The tort, as such, has nothing to do Avith it. The case proceeds on the ground that the defendants have got the complainants’ property, and must account for it. This bill Avas filed during the life-time of Bruce. He and his partner, Morgan, Avere both served, and both answered. (We do not think the simple death of Bruce authorized the proceeding to go on against the survivor. Were this an action at law, this Avould, Avithout doubt, be the proper course. The survivor, on the death of a partner, is, at laAV, the only person to sue or to be sued. But in equity this rule is modified by the settled principle, that all parties in interest must be before the Court/) The death of a partner dissolves the partnership, and as to all choses in action, the legal title and right to sue is in the survivor; but, Avith certain qualifications, the personal representatives of the deceased become tenants-in-common Avith the survivor of all the partnership property and effects in possession. Story on Partnership, sec. 346. The estate of Bruce is directly interested in the result of this decree. It is a tenant-in-common with Morgan in the effects, out of which it must be paid, and unless' there be some good reason shown, as that there are no effects, Ave do not see Iioav the case can go on without a representative of Bruce. Story’s Equity Pleading, sec. 167. Mor do we think section 3396 of the Code is against this view. That section does not mention the ease of partners, and it provides that the plaintiff may proceed against the survivor to the extent of Ms liability. But here is a proceeding, not only against Morgan, but, in its necessary effect, against the assets of the firm, in which, as we have said, the estate of Bruce has a common interest with Morgan. If it should be shown that Bruce’s representatives have no interest in these effects, as by an allegation that there are no firm assets, or that they are wholly insufficient to pay the debts of the concern, that might furnish an excuse for not making the representative a party. But as the case appears in this record, we think the Court right in granting a new trial on this ground.

Nor do we see any error in allowing the correction of the mistake in the name of E. M. Bruce. These were parties to the cause in Court, and this was a mere error in description, which, we think, might be corrected on motion at any time,

4. The permission to enter on the minutes the order suggesting the death of Bruce, was not error. The death had been suggested at the proper time, and noted by the Judge on his docket. The Clerk had failed to transfer this entry to the minutes. It was a mere misprision of the Clerk. The minutes did not show the true history of the case as the facts occurred, and it was the duty of the Court, at any stage of the proceedings, even after judgment, to make the minutes conform to the truth. The Judge’s docket is a mere memorandum, for his own convenience, and is not the record.

5. It is the duty of the Clerk to transcribe, each day, into the minutes, the continuances, suggestions, etc., showing progress or action, by the Court, in the cause where that action does not otherwise appear upon the minutes. If, in any case, the Clerk fails to do this, surely the Court may, at any time, have this misprision corrected.

-Judgment affirmed.