Gazette Publishing Co. v. McMurtrie ( 1898 )

Opinion by

Orlady, J.,

McMurtrie and Alcers, being partners, confessed judgments aggregating $2,221.29 in favor of certain creditors, who caused executions to be promptly issued, and tbe personal property of the defendants to be sold thereunder for the sum of $3,433.45.

An auditor was appointed to distribute the proceeds of the sheriff’s sale, and pending the distribution, other creditors secured judgments against the late firm, and against one of the members individually.

On March 1,1897, the court made an order confirming the report of the auditor absolutely, by which the balance in the hands of the sheriff was distributed

To David McMurtrie, ..... $407.88

To John D. Blair assignee of F. L. Akers, . 317.21

Qn the same day, the plaintiffs presented their petition in which they alleged certain facts relating to the distribution of the fund which caused the court to make the following order :

“ Now, March 1, 1897, it is ordered that the sheriff do not pay out the money distributed to the individual partners or their assignee before Wednesday, March 10, 1897.”

Subsequent to this, the sheriff paid $326.88 to David McMurtrie who claimed the balance of the fund, and asked that the sheriff be directed to pay that amount to him, to wit: $81.00, under the exemption laws. This was refused, and the single error urged is to this action of the court.

The distribution of the proceeds of the sheriff’s sale was conducted under the supervision of zealous counsel, and a number of petitions were presented asking for decrees which would hold or release the fund. None of these were final and many were not excepted to.

The whole fund was under the direct control of the court which had jurisdiction of all the parties and of the fund. The record shows that McMurtrie received $300 of the fund which was produced from the partnership assets, and that creditors of the firm claimed the balance on final judgments against the partnership, who, as stated by the court “ ought, in good conscience and equity to be paid before the individual partners would be entitled to such excess.” In this we see no error.

The assignments of error are overruled and the decree is affirmed.