151 P. 194 | Okla. | 1915
This is an action for rent instituted by J.P. Dillinger against White Smith, a copartnership. Before this suit was tried, E.F. White, a member of the copartnership, died. The death was not suggested to the court. The action was tried and a verdict rendered in favor of plaintiff against the copartnership. Motion for new trial was overruled. Two motions in arrest of judgment, one by the two surviving partners, and one by the personal representatives of the partner who died pending the suit were filed; the first motion in arrest of judgment was overruled and the second sustained. Judgment was rendered against the copartnership and the two surviving partners individually for $665.
The first question presented is: Can judgment be rendered against a partnership after the death of one of the partners? It is a general rule under the common law that a general partnership is dissolved as to all the partners by the death of a partner, and under section 5013, Comp. Laws 1909 (section 4459, Rev. Laws 1910), it is specifically provided that death of a partner dissolves such partnership. Lindley on the Law of Partnership, (2d Ed.) 590; Bates on the Law of Partnership, section 580; Wilson v. Simpson,
We conclude therefore that it was error for the court to render judgment against the partnership after its dissolution, and, as no judgment was asked against the surviving members, it was error to render a judgment against them.
The cause should therefore be reversed and remanded.
By the Court: It is so ordered. *558