57 Kan. 492 | Kan. | 1896
This was an action upon the bond given by John S. Christie as surviving partner of the late firm of Christie & Carter. The firm was engaged in the banking business from June, 1886, until July 8, 1887, when S. F. Carter, a member of the partnership, died intestate. M. A. Carter, his widow and sole heir, was appointed administratrix of the estate, and John S.. Christie, the surviving partner, was appointed and for a time acted as co-administrator; but he subsequently resigned, and M. A. Carter became, sole administratrix of th.e estate. After the decease of Carter, Christie carried on the banking business under the'same firm name without giving a bond as surviving partner, until some time in September, 1889, when M. A. Carter caused a citation to be issued from the probate court requiring Christie to execute a bond as surviving partner and to proceed with the settlement of the partnership estate in accordance with law. In pursuance of the citation a bond was executed by Christie as surviving partner, which was approved on the 24th day of September, 1889. On December 26, 1889, M. A. Carter, as administratrix, brought an action against John S. Christie in the District Court for an accounting of the banking business ; and, in addition to the facts already stated, she alleged that Christie had refused to disclose the status of the business, and had not since the giving
“If a controversy exists, prima facie the district court has jurisdiction of it. Controversies between a surviving partner and the administrator and heir of the deceased partner, perhaps not all, but certainly some and probably most of them, are cognizable in that court.”
In Klemp v. Winter, 23 Kan. 699, it was decided that, while the probate courts of the State have general jurisdiction over the-estates of minors, there was nothing to indicate the talcing away or limiting the jurisdiction of the district court in that class of cases ; and where a complete remedy cannot be obtained in the probate court a party may rightfully invoice the jurisdiction of the district court. It was also held that where there is a branch of the case which must necessarily be taken to the district court, that court will, for the purpose of avoiding a division of the subject-matter or a multiplicity of suits, take jurisdiction of the whole subject-matter and dispose of the same as justice and equity require. The jurisdiction of the district court in such matters is an equitable one, and in its exercise that court will be governed by the rules of equity ; one of which is that as a general rule it will only take jurisdiction where the plaintiff has no other adequate remedy by ordinary legal proceedings in the tribunal especially provided by statute. Kothman v. Markson, 34 Kan. 542; Gafford, Guardian, v. Dickinson, Adm’r, 37 id. 287; McLean v. Webster, 45 id. 644. In the case In re Hyde, Petitioner, 47 Kan. 281, it was held “to be settled law in this state that, when certain facts exist, growing out of the liabilities of a deceased
The matter of taking an accounting comes within a recognized head of equity jurisdiction, and it is one in which a full measure of relief cannot always be obtained in the probate court. Especially is this true where, as in this case, the accounting appears to involve matters outside of the partnership business. The probate court could not take cognizance of an individual liability from Christie to Carter, nor of transactions occurring between them prior to the commencement of the partnership ; and claims of this character are made. The debts of the partnership appear to have been discharged and the estate appears to have been practically settled before the commencement of the accounting action, except as to the division of the assets between Christie and the administratrix. It was in such a condition that all business matters of the late firm, as well as between its members and also between the surviving partner and M. A. Carter, the representative and sole heir of the deceased partner, could be determined. It is conceded that all of these matters might be determined in a general accounting, and it was therefore proper for the plaintiff to apply to a court which had complete jurisdiction to dispose of the whole subject-matter in controversy between them. The district court could take jurisdiction" of all accounts against Christie and upon which he would be liable to M. A. Carter and dispose of them in a single case as justice
The judgment of the District Court will be reversed, and the cause remanded for a new trial.