Wadley, Jones & Co. v. Jones, 55 Ga. 329

Wadley, Jones & Co. v. Jones

55 Ga. 329 | Ga. | 1875

Bleckley, Judge.

Concede to the complainant the position that he claims for himself; treat him as a partner by succession to his father, through purchase of his father’s interest, and through recognition and acceptance by all the other members of the firm. Concede, also, that there was a firm styled Wadley, Jones & Company, and that it,had, originally, two branches of business, a copartnership lumber business, and a copartnership railroad business. Still, we think the complainant was not, in this suit, entitled to the verdict which the jury rendered in his favor. The lumber business had been discontinued, and, as to it, the firm had been dissolved long before the complainant filed his bill. The railroad business was still in progress. As to it, there had been no discontinuance or dislution. The bill covered the entire subject matter of the former business, and sought, in respect to it, a final account" and settlement; but it had no such scope as to the latter business, being restricted to the complainant’s due share in the net profits which had accrued therefrom, leaving the business to go on as it had done before.

1. It is a rule of law to which there is, perhaps, no exception, either at law or in equity, that to recover at all there must be some cause of actiou at the commencement of suit. With an existing cause to found upon in the beginning, in many cases matters arising pending the action, even down to the time of trial, may, under proper pleadings, be brought into the judgment or decree. But there are reasons of public *331policy, as well as of private justice, why there should be no needless haste in fomenting litigation, and why people who are in no default and have committed no wrong should not be summoned before the public tribunals to answer complaints which are groundless.

2. In the present case, the jury evidently disallowed all the complainant’s demand for moneys arising out of the lumber business. They found, in effect, and, under the evidence, rightly found, that that business was fully accounted for. It is plain, also, that as to the railroad business, the verdict embraces only one partner’s equal share in the one dividend of profits; and that dividend, according to the evidence, accrued and became subject to distribution among the several partners while this action was pending. The verdict puts an unmistakable negative upon every charge in the bill that imputes default to the defendants or any of them. And that negative is well justified by the evidence.

3. The verdict is against all of the defendants, and if otherwise unobjectionable, that alone would be cause for setting it aside; for, as against the Jones defendants, there is no evidence upon -which to charge them with any part of the complainant’s share of the dividend in question, even had it been due at the commencement of suit.

4. The evidence shows that by arrangement among all the copartners, the defendants, Wadleys, (M. & D. Wadley,) were to manage the railroad, collect its revenues, pay expenses, and after discharging certain debts, turn over, out of the net profits, from time to time, to each of the other partners, his equal share. It sufficiently appears that complainant’s father, while a member of the partnership, assented to this arrangement; and no discontinuance or modification of it is shown. The Jones defendants have not overdrawn. They each received from the Messrs. Wadley, out of this dividend, the equal share to whioh»-they were respectively entitled. They have had nothing to do with complainant’s share. No cause is shown why they should refund, or contribute; and they are under no obligation, legal or equitable, to stand bound for *332the payment of that share, which is in the hands of the Messrs. Wadley alone.

5. In consequence of the consent arrangement first recited, the Messrs. Wadley, if in truth the complainant is a member of the firm in lieu of his father, can be made to answer by suit at law for any income from the railroad which they may wrongfully withhold, and to which he has right and title: 13th Georgia Reports, 451; Gow on Part., 11; Story on Part., section 192; 44th Georgia Reports, 454. With such a system of collection and division of profits, there is no occasion for going into equity to constrain payment; but in whatever forum brought, the suit for a share in one of these dividends, must, we think, be located in the county in which the Wadleys reside, (which seems to be Emanuel, not Burke, where the Messrs.'Jonefe reside,) they being the real debtors and the only necessary defendants.

6. It may be said that the verdict rendered is for an amount admitted to be in hand, and therefore there would be no wrong done by leaving it to stand as against the Wadleys, setting it aside only as to the defendants, Jones: 49th Georgia Reports, 622. But courts administer legal justice, and that has relation to means and not alone to the end. It involves exemption from suit till there is a cause of action, location of suit in the proper county, and full and fair opportunity for trial before the tribunal which the law appoints to take cognizance of the case.

Judgment reversed.