Choate v. O'Neal

21 S.W. 470, 57 Ark. 299, 1893 Ark. LEXIS 82

• Court: Supreme Court of Arkansas
• Decided: February 11, 1893
• Status: Published

Opinion

MansEieed, J.

On a settlement of the partnership accounts between the appellant and the appellee’s intestate, the former was entitled to charge the latter with one-half the sum actually paid out of his personal means, in satisfaction of the firm’s note to Freed. But unless on such settlement a balance was found to exist in favor of the appellant, he had no demand against Cole’s estate arising out of the business of the partnership or because of payments made to discharge any of its liabilities. He testified that the accounts between himself and Cole as partners were never settled ; and it has been repeateclly decided that under our laws the probate court has no jurisdiction to adjust accounts between a decedent and his surviving partner. Nelson v. Green, 22 Ark. 547; Tiner v. Christian, 27 Ark. 306; Culley v. Edwards, 44 Ark. 423; Const. 1874, art. 7, secs. 15, 34. As that court could not ascertain whether anything was due to the appellant except from an account which it had no power to state, it should have refused to take jurisdiction of his claim ; and the circuit court should have dismissed the case on appeal. Grider v. Apperson, 38 Ark. 388.

The appellant’s remedy was by a suit in equity against the appellee to obtain a settlement of the partnership accounts and a decree for any balance shown to be due him. On obtaining such decree, it would of course become the subject of an allowance in the probate court under the statute, in the manner provided for common law judgments recovered against a decedent’s personal representative. See Mansf. Dig. sec. 100; sec. 107 note (aa.); sec. 108 (bb.); also note (cc.) sec. 110.

Finding it unnecessary to decide the question raised by the appellee’s plea of the statute of limitations, we have not considered it.

The judg'ment of disallowance rendered by the circuit court will be vacated, and the cause dismissed.