Dingman v. Henry

279 F. 795 | D.C. Cir. | 1922

ROBB, Associate Justice.

Appeal from a judgment in the Supreme Court of the District sustaining appellees’ demurrer to appellant’s plea in abatement to appellees’ writ of scire facias.

On March 18, 1901, the appellees and Allen B. Stevenson obtained a judgment in the court of common pleas of Allegheny county, Pa., for $920, interest and cost’s. An examination of the record in that case discloses that the action was for “services rendered as attorneys” by the plaintiffs. The answer therein filed recognized the character of the services for which compensation was sought, namely, that the plaintiffs were attorneys who together had represented the defendant, appellant here, in a professional capacity.

The original plaintiffs, on September 23, 1901, filed a suit in the court below, declaring upon the Pennsylvania judgment, and on January 24, 1902, obtained judgment. On December 4, 1908, a scire facias issued upon which, on January 6, 1909, a fiat was entered. On December 22, 1920, a further writ of scire facias was issued, to which appellant interposed his plea in abatement, on the ground that since the issuance of the first writ Stevenson had died.

It is the contention of appellant “that the proper construction to be placed upon the matter is that three plaintiffs, by the scire facias, asserted that a right of action had accrued to them within the meaning of section 235 of the Code,” and that “the right of action, if any, was one that would survive in favor of a legal representative within the-meaning of section 235.”

[1,2] We agree with the trial court that the relationship of the original plaintiffs amounted to a special partnership, since they were engaged in a common enterprise for mutual benefit. Consaul v. Cummings, 222 U. S. 262, 32 Sup. Ct. 83, 56 L. Ed. 192; Jackson v. Hooper, 76 N. J. Eq. 185, 74 Atl. 130; Senneff v. Healy, 155 Iowa, 82, 135 N. W. 27, 39 L. R. A. (N. S.) 219. It is apparent, therefore, that section 235 of the Code, relating to the survival of rights of actioni and abatement in case of death, has no application, since the surviving partners were vested with the legal title to the assets of the special partnership, and, having reduced such, assets to possession, will be accountable to the repreentatives of the deceased partner. The trial justice ruled that the scire facias may be amended by suggesting the-c.eath of Stevenson, and we see no reason why this may not be done, as. such an amendment in no way affects the rights of the defendant.

The judgment is affirmed, with costs.

Affirmed.