Erret v. Pritchard

121 Iowa 496 | Iowa | 1903

Bishop, C. J.

r. jurisdiction: not acquired ^appeal. It is conceded that the justice of the peace had no jurisdiction to entertain an action for an accounting or seltlement of partnership affairs. This can be done alone in a court having equitable . ...... [jurisdiction. It is also conceded that the jnr-isdiction of the district court on appeal depends upon the jurisdiction of the court from which the appeal was taken.. If the justice bad no jurisdiction, the appellate court acquires none by the appeal. McMeans v. Cameron, 51 Iowa, 691; Hollen v. Davis, 59 Iowa, 444. If, then, this action was one for the settlement of partnership accounts, neither the justice nor the district court had jurisdiction, and the motion to dismiss was properly sustained.

3. jurisdiction concealment of partnership funds, But we think the action was not such in character. In effect, the motion to dismiss makes admission of the truth of the matters alleged in the petition. We have then simply a case where, after a partnership settlement, it is made to appear that one of 7 the partners, prior to the settlement, secretly and fraudulenly appropriated to his own use a specific sum of money belonging to the partnership, and which should have been taken into account at the settlement, ¡but was not. The action is not based on fraud. That is .alleged only in explanation of the omission to take the sum of money in controversy into account at the settlement. The theory upon which plaintiff sues is that, having wrongfully withheld the specific sum of money from the settlement, the defendant is now liable as for a money judgment for one-half such sum. And with this view we concur. Here no settlement of partnership affairs is necessary in order to determine the right of plaintiff to recover, and hence there is no necessity for the intervention of a court of equity. Was the specific sum of money withheld, is the only question to be tried. Such question being answered in the affirmative, the right of plaintiff to a judgment for one-half such sum follows as a matter of course. It has frequently been held that an action at law may be maintained between former parties, notwithstanding the subject-matter of the action grew out of partnership transactions, providing that no general adjustment of •partnership affairs was necessary to a determination of -the merits of such action. Thus in Donahue v. McCosh, 70 Iowa, 733, the court entertained an action at law to recover an amount claimed by one partner to be due from tbe other because of errors in computation made in the settlement of partnership affairs. In Farwell v. Tyler, 5 Iowa, 535, defendant was permitted to offset, as against a note given by him in settlement of partnership affairs, debts owing by the partnership, and which had been paid by him subsequent to the settlement. “Where a partnership has been dissolved, and the partners have accounted with each.other as to everything, except one item, one partner may maintain an action at law against the other for his share of that item, because in such a case there are no equities to be adjusted, and no'accounting is necessary, as would be the case had there been no spttlement. ” 15 Ency. of Pleading & Practice, 1031; and see the cases there cited.

For the reasons above given, the motion to dismiss should have been overruled. The judgment is REVERSED.