Childs, Sanford & Co. v. John Hyde & Co.

10 Iowa 294

• Court: Supreme Court of Iowa
• Decided: January 14, 1860
• Status: Published

Opinion

StocktoN, J.

The action could not be continued against the administrators of Scott as defendants jointly with the surviving partners, and the motion of the administrators to quash the notice, and their demurrer to the petition should have been sustained.

It was not competent for the plaintiff to join the administrators of the deceased partner with the surviving partners and pray a judgment against both in the same suit. The judgment against them is in different rights ; against the surviving partners it must be a judgment de bonis própriis; against the administrators it must be a judgment de bonis testatoris. Both these judgments can not be rendered in the same suit. There is no more authority for such a proceeding since, than there was before the taking effect of the Code.

The section of the Code to which reference is made by the appellee (section 1698) does not apply to an action against a partnership firm when one of the partners dies pending the suit. The surviving partners are the representatives of the firm, and it is against them that the suit is to be continued. It is, moreover, to be considered that the plaintiffs attain the same end by a judgment against the surviving partners as by a judgment against the administrators of the deceased partner. The judgment against the survivors binds the partnership property and is conclusive on all the members of the firm. A judgment against the administrators could only be filed with the County Court as a claim against the estate of Scott. Code, sections 1862,1868.

The form in which the judgment against the administrators was rendered was erroneous. But as the remarks above made are decisive of the question material to the appellants, and urged by the assignment of errors, nothing further need be said.' The judgment against the administrators of Scott is reversed.

Judgment reversed.