| Wis. | Jun 24, 1897
The question which is decisive of this appeal is whether the demurrer ore tenus was properly overruled. If the complaint states a cause of action in favor of the plaintiff and against the defendants as heirs of J. Smith Smock, then there can be no question that the proof establishes such cause of action as is pleaded. The more definite question is whether the complaint states such facts as show that the plaintiff had a claim against J. Smith Smock, which he is entitled to enforce against his heirs under sec. 3274, E. S. The point chiefly in debate was whether action on plaintiff’s claim was barred because not presented to the probate court and allowed against the estate. It was urged that plaintiff’s claim was taken out of the operation of the statute (sec. 3844) by the fact that it was only a contingent claim, and not a proper claim to be allowed. If it was in truth a contingent claim, which did not become absolute during the time when the estate was in process of settlement, then the case does not come within the bar of the statute. Mann v. Everts, 64 Wis. 372" court="Wis." date_filed="1885-11-03" href="https://app.midpage.ai/document/mann-v-everts-6604895?utm_source=webapp" opinion_id="6604895">64 Wis. 372. There is a sense in which it may be said, perhaps, that the plaintiff had a claim against the estate of J. Smith Smock, contingent' on the happening of certain conditions. If, on an accounting and settlement of the partnership transactions, something should be found due from the partnership to the plaintiff, and also something should be found due from J. Smith Smock to the partnership, and there should be a substitution of debtors, on the happening of all these contingencies the plaintiff would become a creditor of the estate of J. Smith Smock. Possibly it could be said that before these contingencies happened he was a creditor with a-contingent claim, within the meaning of the statute. The question is not important in this ease, for the contingencies have not happened. There has been no accounting and settlement of the partnership affairs. Until such settlement, whatever is due from each partner is due to the partnership, and whatever is due to a partner is due from the partnership. Sprout
It is not, indeed, claimed that there has been a settlement of the affairs of the partnership. But such settlement is sought in this, action, and that the balance found due from the partnership to the plaintiff be made a lien upon the real estate which the defendants inherited from his copartner. This seems to be a misjoinder of incongruous causes of action. They are not such as it is permissible to join under sec. 2647, R. S. They do not belong to the same class, as' therein defined, nor affect all the parties to the action. A purely legal cause of action under the statute is joined with one purely equitable, and requiring different parties. To the legal cause of action the heirs of J. Smith Smock are necessary parties.' To the equitable cause of action they are not even proper parties, while the representatives of J. Smith Smock are necessary parties, without whose presence no judgment can be rendered which shall in any way affect his estate. Fuller v. Benjamin, 23 Me. 255" court="Me." date_filed="1843-06-15" href="https://app.midpage.ai/document/fuller-v-benjamin-4927814?utm_source=webapp" opinion_id="4927814">23 Me. 255; Jenness v. Smith, 58 Mich. 280" court="Mich." date_filed="1885-10-28" href="https://app.midpage.ai/document/jenness-v-smith-7932223?utm_source=webapp" opinion_id="7932223">58 Mich. 280; Bates, Partnership, § 931. The representatives of J. Smith Smock are not parties to the action. So, no judgment in the action, by way of an accounting, could be binding upon his estate, or be the basis of new rights in the plaintiff in his estate. Even if it should be deemed that the plaintiff had a contingent claim against the estate, such claim remains contingent, and has not become absolute.
On these considerations, it seems clear that the complaint fails to show that any claim or right of action against the estate of J. Smith Smock has accrued to the plaintiff, or
By the Court.— The judgment of the circuit court is re■versed, and the cause remanded for further proceedings ac-cording to law.