Carpenter v. St. Clair Circuit Judge

81 N.W. 95, 122 Mich. 323, 1899 Mich. LEXIS 696

• Court: Michigan Supreme Court
• Decided: December 12, 1899
• Status: Published

Opinion

Montgomery, J.

One Otis Joslyn filed a bill for an accounting in the St. Clair circuit court, in chancery. The bill alleged that a copartnership existed, consisting of Angus M. Carpenter and Brooks, Joslyn & Co.; that the firm of Brooks, Joslyn & Co. was composed of Otis Joslyn and George Brooks, deceased. The defendant filed a plea setting up that one John Jenkinson had been duly appointed administrator of the estate of George Brooks. This plea came on to be heard, and was overruled. The question presented is whether the administrator is a necessary party. The rule is stated to be that the administrator of a deceased partner is a necessary party to a bill for an accounting. 2 Bates, Partn. § 931, and cases cited; Jenness v. Smith, 58 Mich. 280. The fact that the bill alleges that Brooks, Joslyn .Sc Co. was one member of the firm, and Carpenter the other, cannot affect this rule. The most that can be said is that such averment affects tbe extent of the interest of the representatives of George Brooks.

Mandamus is a proper proceeding. Chapin v. Montcalm Circuit Judge, 104 Mich. 232; O'Brien v. Alpena Circuit Judge, 106 Mich. 42.

The writ will issue, directing the respondent to vacate the order overruling the plea, and to take such further action as may be deemed proper.

The other Justices concurred.