Adams v. Carmony , 44 Ind. App. 291 ( 1909 )

Roby, J.

This is a suit for an accounting and for a receiver of the partnership assets of the firm of S. TI. Adams & Co., which firm was composed of the appellant, Adams, and the appellee, Carmony. The firm began business at Portland, Indiana, in January, 1897, and continued until January, 1906, during which period of time they expanded their business to Geneva, Indiana, and to Mingo, Missouri. The partnership was dissolved on the latter date. Appellant, by agreement, took possession of the property, and proceeded to settle the partnership affairs. The court made a special finding, stated conclusions of law thereon, and entered a decree accordingly, continuing the suit as to the appointment of a receiver.

The points made by appellant, and presented by exception to the overruling of his demurrer to the complaint and by exception to the conclusions of law are: (1) That the suit will not lie until the firm debts have been paid; (2) that it cannot be maintained as a suit for a dissolution, such dissolution having taken place by contract; (3) that the appellant, being solvent, and engaged in winding up the concern, has the same right to the possession and control of the partnership assets as the other partner.

1. 2. The appellant correctly asserts that, the dissolution having been by agreement, the appellant, being in possession of the assets for the purposes of realizing upon them, discharging liabilities and distributing the surplus, had the same right as, and occupies a position analogous to that of, a surviving partner. The premise being granted, the situation is greatly simplified. A surviving partner is by statute required to submit himself to the jurisdiction of the court, and is thereafter subject to the control and order of the court which has jurisdiction of said matter. It is the duty of such court to exercise rigid inspection over the settlement of such estate, insuring a speedy administration thereof. Harrah v. State, ex rel. (1906), 38 Ind. App. 495.

3. 4. In the case at bar the institution of an independent suit was necessary to confer jurisdiction. That being acquired, those remedies by which a court of equity works out justice as occasion calls for became available. Had a receiver been appointed the possession of the assets and the further conduct of the estate would have been removed from appellant. The court did not go to this extent, and there is no reason why it should not do as it did — avoiding the expense incident to a settlement thus made. Certainly it does not lie with appellant to object that he is still permitted to act. Had a receiver been appointed it would have been competent for the court to order a partial distribution of assets. Herrick v. Miller (1890), 123 Ind. 304. Nor would this trench upon the established doctrine that partnership debts must be paid before distribution to the partners. Powell v. Bennett (1892), 131 Ind. 465. The court will, as in administration of decedents’ estates, see to it that no partial distribution interferes with the payment of debts in full.

5. The decree appealed from requires appellant to pay out of the cash assets of the firm $3,600, in discharge of liabilities, and to proceed with diligence, realize upon unsold assets, account to appellee for his proportionate share thereof, and also to pay $24.30 to appellee, such sum being his share of funds on hand not necessary to pay liabilities. The transactions involved in this settlement are numerous, amounting to many thousands of dollars, and covering extended periods of time. The trial judge with patience and care investigated these matters, and entered a decree which is unexceptionable in results. No public or private interest would be served by an attempt here to review the facts found by him. Indeed, no serious fault is found with the result, except as the same is based upon legal propositions which are not applicable to the facts, as they are here presented.

Judgment affirmed.