Curry v. Allen

Dec 16, 1880
Reporters:
,
Before:
Seevers
Seevers, J.

i.practice: attachment. I. The statute provides the « plaintiff in a civil action may cause any property of the defendant which n°k exempt from execution to be attached,” Q0(jej g 2949. “A civil action is a proceeding in a court of justice in which ‍‌‌​​‌​‌​‌‌​​​​‌‌​‌​‌​‌​‌​‌‌‌​‌​​​​‌‌​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​​‌​‌‌​‌​‌​​​‌‌​​​​‌‌​‌‌‌​‌​‌‌​​​​​‌​​​​‍one party known as the plain*320tiff demands against another party known as the defendant the enforcement or protection of a private right, or the prevention or redress of a private wrong.” Code, § 2505. “ The proceedings in a civil action may be of two kinds, ordinary or equitable.” Code, § 2507. That partnership property may be attached’ is recognized by statute, and the manner such right may be exercised defined. ’ Code, § § 2973, 2974. This being a civil action, therefore, the motion to dissolve the attachment was properly overruled. ‍‌‌​​‌​‌​‌‌​​​​‌‌​‌​‌​‌​‌​‌‌‌​‌​​​​‌‌​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​​‌​‌‌​‌​‌​​​‌‌​​​​‌‌​‌‌‌​‌​‌‌​​​​​‌​​​​‍If a reason be required in support of the statute, it may be said that an attachment ordinarily is less expensive than a receiver.

2.-: setpartnersiiip. II. There was evidence tending to show there was a settlement of the partnership accounts in December, 1876, and that the plaintiff was found indebted to the defendant. The evidence also tended to show the plaintiff took possession of and used the partnership property during the years 1878 and 1879, and appropriated the proceeds to his own use, and refused to account therefor, although ‍‌‌​​‌​‌​‌‌​​​​‌‌​‌​‌​‌​‌​‌‌‌​‌​​​​‌‌​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​​‌​‌‌​‌​‌​​​‌‌​​​​‌‌​‌‌‌​‌​‌‌​​​​​‌​​​​‍the partnership had not been dissolved. In adjusting the accounts the court refused to consider the foregoing evidence, but left such questions open, and reserved the right to either party to bring other actions for the adjustment thereof. In this we think the court erred. The aforesaid matters were properly pleaded by the defendant, and the court had jurisdiction of the parties and subject-matter, and should have considered the same in this action. If there was anything due the defendant at the close of 1876, he had the ‍‌‌​​‌​‌​‌‌​​​​‌‌​‌​‌​‌​‌​‌‌‌​‌​​​​‌‌​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​​‌​‌‌​‌​‌​​​‌‌​​​​‌‌​‌‌‌​‌​‌‌​​​​​‌​​​​‍right to have the same applied to the reduction of the amount due from him to the plaintiff in 1877. As there was no dissolution of the partnership, and the plaintiff used the partnership property in 1878 and 1879, the defendant had the right to have the amount due him, if anything, ascertained, and the same adjusted in this action.

As this cause must be reversed, we deem it proper to say: First, that both parties should be charged with all moneys received and paid out on account of the partnership, ‍‌‌​​‌​‌​‌‌​​​​‌‌​‌​‌​‌​‌​‌‌‌​‌​​​​‌‌​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​​‌​‌‌​‌​‌​​​‌‌​​​​‌‌​‌‌‌​‌​‌‌​​​​​‌​​​​‍whether *321before or after the commencement of this action; and Second.I, that the pleadings should be amended, or otherwise reformed, if necessary, so as to effect a full and complete adjustment of all partnership accounts, to the end that a full and final decree may be made.

Reversed.