64 A.2d 866 | Pa. Super. Ct. | 1948
Argued November 15, 1948. On September 8, 1946, Ralph R. Luick abandoned his wife, the plaintiff in this action, and their six small children. Since that date his whereabouts has been unknown. For some time he had conducted a pawn shop in Pittsburgh in partnership with two others under the firm name of Fort Wayne Loan Office. Each of the partners had a one-third interest in the business. When plaintiff's husband disappeared the two remaining partners immediately dissolved the partnership for the reason assigned, that he had misappropriated partnership funds. And on September 14, 1946, a new partnership was formed by the two remaining partners, with another selected by them, which took over and has continued the business under the name of Fort Wayne Loan Company. No notice of the dissolution of the old partnership was given plaintiff until after its liquidation and the reorganization of the business, to the exclusion of plaintiff's husband, by the present partnership under a new, though similar, firm name. Since his disappearance Ralph R. Luick has not contributed to, nor made provision for, the support of his wife.
This proceeding in equity was brought under the Act of May 23, 1907, P.L. 227, as amended, 48 P. S. § 132, in the first instance to secure an accounting of the interest of plaintiff's husband in Fort Wayne Loan Office, the liquidated partnership, and ultimately looking toward the entry of a decree providing for her suitable maintenance out of the value of that interest. The defendant husband was served constructively by publication in accordance with § 2 of the Act of April 6, 1859, P.L. *380 387, 12 Pa.C.S.A. § 1255. Such service is authorized by the 1907 Act where the absconding husband has real or personal property within the jurisdiction of the court and cannot be found. Defendants have appealed from the order of the court requiring them to state an account of the liquidated partnership. The order will be affirmed.
At the hearing before the court below it was contended that when Ralph R. Luick deserted his wife, his interest in the partnership, Fort Wayne Loan Office, was worthless because of his misappropriation of partnership funds in excess of the value of his one-third interest. It now is conceded, however, as it must be, that while his misappropriations of partnership property may affect the final result, they cannot bar plaintiff's right to an accounting: Wilson v. Keller,
A partner's interest in the partnership is his share of the profits and surplus, and is personal property. Uniform Partnership Act of March 26, 1915, P.L. 18, part V, § 26, 59 Pa.C.S.A. § 73. And appellants argue that the lower court was without jurisdiction in this case because, assuming that his partnership interest had value, there was no property of the husband within its jurisdiction. It is contended that the maxim mobiliasequuntur personam controls and that the situs of the intangible partnership interest of plaintiff's husband followed him when he left his home for parts unknown.
The maxim has no application in a wife's proceeding under the 1907 Act for support out of her husband's personal property, whether tangible or intangible, within the jurisdiction of the court at the time of his separation *381
from her. We are not in accord with all of the statements of this Court in Eldredge v. Eldredge,
In modern practice the force of the maxim in question has been much relaxed, yielding more and more to the lex rei sitae of personal property. In a leading case, it is said: "The situs of personal property in a jurisdiction other than that where the owner of the property is domiciled has given rise to many difficulties and perplexities. The maxim `mobilia sequunturpersonam' cannot always be carried to its logical conclusion. Practical considerations often stand in the way. Physical presence in one jurisdiction is a fact, the maxim is only a juristic formula which cannot destroy the fact": Hutchison v.Ross,
There is close analogy between an action in rem against a partnership interest, under the Act of 1907, and foreign attachment of the interest of a non-resident in a partnership. It is settled law that "The interest of a partner in firm assets is personalty, and as such liable to foreign attachment": Rankin v.Culver et al.,
The partnership of which Ralph R. Luick was a member has been dissolved and liquidated. An accounting by the successor partnership which took over its assets will determine the value of his interest, which will be available for the support of the wife in this proceeding.
Order affirmed.