80 P. 352 | Ariz. | 1905
The complaint in this case alleges that Neville and Chapin were partners; that Neville died on January 3, 1900, and that Chapin, the surviving partner, having possession of the partnership assets, died five days thereafter, and before the partnership affairs were adjusted; that the plaintiff, Franklin (appellant in this court), duly qualified as administrator of Neville’s estate, and the defendant, Trickey, duly qualified as administrator of Chapin’s estate. The complaint further alleges that the partnership property came into the possession of the defendant, Trickey, as administrator of Chapin’s estate, and that he still retains such property, or the.proceeds thereof, and has wound up the partnership business; and the plaintiff asks for an accounting of such partnership property, and for the payment to plaintiff, as administrator, of such portion of said partnership property as shall be found to belong to Neville’s estate. The court below sustained a demurrer to the complaint on the ground that the complaint was insufficient, inasmuch as it does not contain an allegation that a claim against the estate of Chapin was filed with the administrator, as required by law.
The sole question presented for our consideration by the appeal is whether it is necessary to file a claim with the administrator before sueh suit as is here before us can be sustained. The provisions of our statute under which it is contended by
It is contended by the appellee that the sections of our statute which we have quoted were taken from the California law, and that at the time of their adoption the supreme court of California had decided the question adversely to the appel
We think the demurrer to the complaint should have been overruled. The judgment of the district court is therefore reversed and the case remanded to that court for further proceedings.