Scannell v. Felton ( 1896 )

Allen, J.

This is a proceeding to reverse a judgment of the District Court of Republic County rendered in favor of S. G. Stover and C. Perry against Richard Scannell for $5,500 on a contract assigned to them by S. K. Felton, under which Felton had partially constructed the foundation for a Catholic college-building at Belleville. The defendant Scannell was bishop of the diocese, and the land on which the foundation was built had been deeded to him. A motion to dismiss the proceeding in this Court is interposed. It appears that Stover & Perry were engaged in the business of banking, as partners, at Belleville; that on the 23d day of August, 1893, which was after the petition in error was filed in this Court, C. P. Carstensen -was, on the application of the Attorney General, duly appointed receiver to take charge of the effects of their bank; that, in a few days thereafter, he qualified and took possession, and has ever since continued in the possession of the assets of the partnership. It also appears that C. Perry, one of the partners, died in July, 1895 ; that he left a will, which was duly probated, but that the executrix named therein never qualified, and no other executor or administrator has ever .been appointed in her stead. On the 7th of October, 1896, the plaintiff in error filed, in this Court a motion suggesting the death of Mr. Perry, and asking that it be stated on the record, and that the cause proceed against S. Gr. Stover as surviving partner. Counsel for the plaintiff in error contend that, under the circumstances stated above, the surviving partner has full power to represent the interest of the deceased partner as well as his own ; that all parties necessary to a determination of the controversy are now in court; and that no formal revivor against Stover as surviving partner is really necessary, he being here to speak for his own interests, and being, in fact, the survivor. On the other hand, it is urged that a revivor against Stover as surviving partner was necessary, and that more than one year after it might first have been had elapsed before the motion to revive was filed. It is also contended that the receiver is a necessary party in this Court. Without undertaking to pass on the necessity for a revivor against the surviving partner, we are of the opinion that it was necessary to revive against the receiver ; that he is not only a necessary party, but that he is the only party authorized to speak for the partnership estate of Stover & Perry. It appears from the proof now presented that the firm of Stover & Perry became insolvent, and that whatever assets remain belong to the creditors of the firm rather than to them. The receiver appointed under the banking law stands as the representative of the creditors, and is required to protect their interests. No suit in which the right to assets of the estate is involved can proceed without his being made a party. Talmage v. Pell, 9 Paige’s, Ch. 410. Under the facts disclosed Stover is not authorized to represent any substantial interest, for the judgment, if collected, must be paid into the hands of the receiver, and be by him appropriated to the payment of the debts of the insolvent bank.

There being no one here authorized to represent the judgment creditors, the petition in error must be dismissed.

All the Justices concurring.