Clements v. Lavender

96 So. 785, 209 Ala. 615, 1923 Ala. LEXIS 567

• Court: Supreme Court of Alabama
• Decided: June 9, 1923
• Docket: 6 Div. 763.
• Status: Published

Opinion

McCLELLAN, j.

Appeal from decree overruling demurrer to original bill. According to the averments of the bill, the complainant sues in her individual, not representative, capacity as administratrix of the estate of her deceased husband (R. H. Lavender) who, the bills avers, was at'the time of his death a copartner with respondents Clements and Shirley in a partnership doing a lumber or sawmill business. The conversion and appropriation of assets of the described partnership by the respondents — alleged co-partners of complainant’s husband in his lifetime — is expressly charged. If the bill had been filed in Mrs. Lavender’s capacity as personal representative of her deceased husband, it would have possessed equity. Martin v. Campbell, 207 Ala. 505, 93 South. 477, 478, paragraph numbered 3. In application of pertinent general rule (Sullivan v. Lawler, 72 Ala. 68): As an individual complainant — in which capacity she alone impleads respondents — the bill’s averments disclose no such special circumstances as would justify her proceeding individually to the enforcement of rights consequent upon her husband’s relation to the partnership that was dissolved by his death. Rowley on Partnership, §§ 657, 715-719. See Dent v. Slough, 40 Ala. 518.

The amendment, designed to change the capacity in which complainant sues, was introduced after the appeal was perfected. It cannot be considered on this review. The court erred in overruling the demurrer to the original bill. The decree is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.