Jones v. Warren

70 Miss. 227 | Miss. | 1892

Campbell, C. J.,

delivered the opinion of the court.

The record does not show when the deposition of the appellant was taken, nor the circumstances,'and, so, far as we can discover, there was no ground for suppressing it. The motion to suppress states that it was taken October 24, 1891, without legal notice, while the report of the commissioner shows that it was taken at some time in pursuance of the commission opened by him under the decree of the court. It may have been rightly suppressed because of the circumstances under which it was taken, but we cannot say as to this.

The deposition of Troy Cole was not rightly suppressed. He was a competent witness. Gordon v. McEachin, 57 Miss., 834. His testimony shows satisfactorily that Jones, the administrator, has charged himself, as administrator in this state, with $1,198.85 more than he is chargeable with. The interest of the intestate, Coleman, in the partnership assets of Coleman & Cole constituted Mississippi assets. What was clue to Coleman, the deceased partner, on settlement of partnership matters, was payable by the surviving partner, Cole, to the Mississippi administrator. It was paid to him on a settlement made in Alabama. But, although paid in Alabama, it was to be accounted for in Mississippi, and the administrator is chargeable only with the sum received by him from Cole, as the sum clue Coleman of the assets of Coleman & Cole, after adjusting all matters between them as partners.

The statute of limitations, and other statutes invoked, have nothing to do with the case. The duly question is, with what sum is the administrator chargeable, by reason of his receipt from Cole of the share of Coleman in the partnership assets of Coleman & Cole?

It seems manifest that he has charged himself with a sum as received on this account which he did not, in fact, receive, and that he is entitled to diminish the debits against him by this much. It seems to us that misunderstanding has resulted from considering the question of paying the $1,193.85 constituting the individual indebtedness of Coleman to Coleman & Cole, whereas, the true question is, how much is the administrator chargeable with, by reason of his receipt from Cole of Coleman’s share of the assets of the partnership of Coleman & Cole? To the extent that the administrator, in his account, charged himself with more than he received on settling with Cole, survivor of Coleman & Cole, he should be allowed credit. That this may be ascertained, the decree is

Reversed, and cause remanded.