Topper v. Schonberg

KUNKLE, J.

Epitomized Opinion

First Publication of this Opinion

Schonberg sued Topper in Common Pleas and the executors of M. Topper’s estate for a balance owed on an alleged account for merchandise claimed to have been sold to I. and M. Topper, as partners. At the time the suit was filed, both partners were made defendants. Later M. Topper died and the suit was revived in the nam'e of his personal representative. After the suit was filed, the partnership was dissolved. Judgment was rendered for Schonberg.

Error is assigned on the ground that Schon-berg was allowed to call I. Topper for cross-examination over his objection, his counsel claiming that he was an adverse party to the estate of his co-d'efendant, and therefore prohibited from testifying under 11495 GC. In affirming the judgment, the Court of Appeals held:

1.- “It is true that I. Topper was a co-defendant along with the executors of the estate of M. Topper, deceased. We are clearly of opinion, however, that he was not an adverse party as provided in Sec. 11495 GC.” Schonberg has no concern in the contention that when the partnership was dissolved, I. Topper assumed and agreed to pay the debt. The cause of action was against the former partners, and as to such cause of action I. Topper was not an adverse party as against the estate of M. Topper.