11 Colo. App. 470 | Colo. Ct. App. | 1898
delivered the opinion of the court.
Appellee, as administratrix of the estate of H. E. Wright, deceased, presented to the county court of Ouray county, sitting for the transaction of probate business, a petition supported by affidavit which recited among other things that George L. Wright, the appellant, and Milton Moore were
First. Moore was not served with the citation, and did not appear in court. The petition was the basis of the proceedings. It alleged that a partnership relation in the operation of certain mining property existed between the deceased, the appellant, and Moore. When the court undertook to hear and determine the question as to the existence of this partnership, affirmed on the one side and denied on the other, it undertook to settle and determine the rights of all parties, including Moore, to this property. It needs no argument in support of the proposition that the court was without jurisdiction in this manner to determine the rights of Moore, who was not before the court, and if it was without jurisdiction as to him, it was equally so as to all the parties concerned.
Second. It is equally clear to us that the county court sitting for the transaction of probate business was without power and authority to determine the rights of any of the parties in the manner attempted. The petition was based upon a statute adopted in 1885, providing for the duty of surviving partners in respect to partnership property. Laws, 1885, p. 285. The first section required that the surviving partner should make a complete inventory of the copartnership estate and a full and complete list of the firm liabilities at the time of the death of the deceased partner, and should cause the estate to be appraised in like manner as the individual property of the deceased person. The second section required this inventory, list of liabilities, and appraisement to be filed in the county court within sixty days after the death of the copartner, and provided that upon his neglect or refusal to make such return, he should, after citation, be liable to attachment. The third section provided that he should have a right to continue in possession of the effects of the partnership, pay its debts out of the same, and that he should, upon demand made by the executor or administrator, settle its business. It further provided that upon the application of the executor or administrator, the county court might, whenever
We conclude therefore that the probate court was without power or authority to try and determine the question of the existence of the partnership alleged, and it must be of course
In view of the fact that the final settlement of this estate cannot probably be had until the rights attempted to be adjudicated in these proceedings are determined,we suggest in the interest of a speedy termination of litigation, which is important in the administration of estates of deceased persons, that the proper practice would be to have first settled the question whether or not the alleged partnership did exist. This should be done by a suit in equity, to which all necessary persons in interest should be made parties and brought into court. If the question should be decided in the affirmative, then the interest of the decedent in the partnership would also be ascertained and determined, and thereafter the administratrix might if necessary avail herself of the provisions of the special statutes of 1885, above referred to.
The order of this court will be that the judgment be reversed, and the cause remanded to the district court with instructions to revote its order, to dismiss the proceedings, and discharge the defendant.
Reversed.