DocketNumber： Nos 477, 480, 481, 482 & 483
Citation Numbers： 20 Ohio Law. Abs. 673
Judges： Barnes, Bodey, Hornbeck, Rodey
Filed Date： 7/5/1935
Status： Precedential
Modified Date： 10/18/2024
Under the evidence as presented, we are in accord with the court’s determination so far as the claimants are in this court, that neither had preferred claims; but the determination of this single question does not adequately instruct the receiver as a guide in his distribution of the assets.
Ás we view it, the real question for determination is whether or not the claimants are partners. If partners, then they can not be a creditor. Partners as such, are only entitled to a distribution of any balance remaining after creditors have been paid in full. Under the record as presented in the several cases before us, we have no difficulty in arriving at the conclusion that there is no evidence from which the slightest inference can arise that they are partners. On the contrary, the record as presented conclusively shows that they are not partners.
In arriving at this conclusion it is not necessary to consider the fiduciary or representative character of the claimants. In other words, the finding would be the same even if the claimants were individuals.
It is proper that we set forth briefly our reasons for this conclusion.
After a consideration of all the evidence we fail to find a single act of any of the four claimants which could raise even the slightest inference of joining a partnership. All they did was deposit money and receive, as evidence of their deposits, what has been designated a pass book. In the front of the pass book is printed, under heading “Articles of Association,” nineteen articles.
Article 3, §1, reads as follows:
“Section 1. Any person in his or her own right or as trustee, may become a member of the association at any time by subscribing to these ry tides and the number of shares desired.”
Neither of the four claimants in this court subscribed to the articles or signed for stock.
Nowhere in the articles of association is it provided that the mere deposit of funds makes him or her a member of the association. Even if we indulge the presumption that the claimants are charged with knowledge of the full content and import of each and every section of the articles of association, we find nothing inferring membership from the mere fact of deposit.
- The articles of association control the members and their rights, and nothing more. None of the claimants in this court received any stock, nor was any issued in their names. There is no evidence that they participated in the election of officers or any of the business affairs of the association. So far as is disclosed from the record, their relationship to the association was the same as would be the depositor in any building and loan association or savings bank.
The name under which it operated business did not suggest a partnership, nor do the articles of association.
We do not want to be understood as saying that membership in a partnership might not arise, even though the individuals did not subscribe to the articles of association, nor would it be necessary that stock be issued.
It is impossible at this time to set forth just what acts or conduct would impress upon the individual the status of a partner, and hence we only refer to this question in a general way. To attempt to do so would be purely dictum and not determinative of the rights of parties whose claims are not now under consideration. So far as the claimants before us are concerned, we do determine that they are not partners. That they are creditors and as such their claims are on a parity with all other deposit creditors, whether evidenced by book deposit or certificate of deposit.
In fairness to all other claimants we think the order and judgment of the Common
It will be apparent to counsel that we have no jurisdiction to pass on any question other than the ones raised by appeal or proceedings in error by the four claimants.
The casts of this proceeding will be adjudged against the receiver.
Exceptions will be allowed.