134 P.2d 559 | Okla. | 1943
This action was instituted in the district court of Oklahoma county by Sam J. Hammonds, as *146 administrator of the estate of Mary Hoge Jordan, deceased, against A.G. Hoge, W.A. Reust, and John C. Hoge to compel them to account as surviving partners for the interest of plaintiff's decedent in a partnership in which she was a member in her lifetime and for the appointment of a receiver pendente lite. The trial court found that an accounting was proper and directed the same to be had in the county court. Motion for new trial was overruled, and defendants have perfected this appeal.
The facts which gave rise to the litigation will be briefly stated. Defendants, as copartners, operate and conduct a hardware business in Oklahoma City. Such business was organized many years ago. Mary Hoge Jordan in her lifetime was a partner in said business. On September 10, 1938, the said Mary Hoge Jordan, a nonresident of the State of Oklahoma and a resident of the State of California, departed this life intestate in the state of her residence. No administration upon her estate was ever had in California. The only property which the deceased had in Oklahoma county was her interest in the partnership of which she and the defendants were members. On petition of decedent's surviving spouse the county court of Oklahoma county, on October 9, 1939, appointed the plaintiff as administrator of the estate of the said Mary Hoge Jordan, deceased. Said administrator demanded that the defendants account to him in the manner provided by 58 O. S. 1941 § 255. The account rendered was not satisfactory and plaintiff instituted the present action. The defendants contend that the appointment of plaintiff as administrator was void as being one coram non judice, and that if the appointment was valid, an accounting shouldn't be had for the reason that settlement of the partnership affairs had been made between the defendants and the surviving spouse after the death of the said Mary Hoge Jordan. The evidence adduced at the trial consisted of testimony of the defendant A.G. Hoge and established the fact that plaintiff's decedent was a member of the partnership at the time of her death and that an accounting was proper. The trial court, however, refused to conduct such accounting or to hear the defendants upon their contentions relative to settlement alleged to have been had with the decedent's surviving spouse, and relegated the parties to the county court for further proceedings.
The defendants contend, first, that since the only estate which plaintiff's decedent had in Oklahoma county was an interest in the partnership, this is insufficient to establish the venue for his appointment, and hence he was without capacity to maintain the action. The venue of the estate of a nonresident who dies out of the state is in the county in which any part of the estate may be. 58 O. S. 1941 § 5, subd. 3. The estate necessary to establish the venue need not be of a tangible nature but may consist of any substantial property right which arises and which is enforceable in the jurisdiction (23 C. J. 1013; Louisville N. Ry. Co. v. Herb,
We next consider the contention relative to error in the judgment of the district court. The county court being without jurisdiction to force an accounting (see In re Dixon's Estate,
Affirmed in part and reversed in part.
CORN, C. J., GIBSON, V. C. J., and BAYLESS, WELCH, HURST, and DAVISON, JJ., concur. RILEY, OSBORN, and ARNOLD, JJ., absent.