Bright v. Williams

97 S.E.2d 247 (1957)

245 N.C. 648

K. Clayton BRIGHT, Administrator of John P. Leath, Deceased, v. Woodrow W. WILLIAMS and wife, Bertha Williams, and George A. Gash, Administrator of the Estate of Beulah Mae Leath, Deceased.

No. 96.

Supreme Court of North Carolina.

March 20, 1957.

*249 Sanford W. Brown and Edward Jerome, Asheville, for defendant appellant.

William J. Cocke and Landon H. Roberts, Asheville, for plaintiff appellee.

RODMAN, Justice.

Defendant insists that his motion made with the answer filed in May should have been sustained for the purported personal service on 17 April had no validity, Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215, and that the order of 24 April for service by publication, having been made more than thirty-one days after the order for the attachment, likewise is ineffective. G.S. § 1-440.7.

If it be conceded that neither defendant nor his property were subject to the jurisdiction of the court when he entered his special appearance and moved to dismiss in May, no objection has been taken or reason assigned to invalidate the attachment and service of process in June. Judge Clarkson was correct in adjudging the court had jurisdiction of the property attached with authority to determine the rights of the parties thereto.

Following the hearing on the motion to dismiss, defendant Williams filed a demurrer. This was his first pleading or response to the process served by publication in June. The filing of the demurrer, without attempting to protect and preserve his rights as respects the attachment and publication of process in June, was a general appearance. Dailey Motor Co. v. Reaves, 184 N.C. 260, 114 S.E. 175. Hence he is subject to the jurisdiction of the court.

Notwithstanding his demurrer for failure to state a cause of action was overruled when in the Superior Court, defendant has demurred here for the same reason. *250 The complaint in brief alleges that plaintiff Leath and Mrs. Leath were, from April 1944 until her death, partners engaged in operating hotels and boarding houses; that the partnership owned a lot at 24 Grove Street, Asheville, hotel equipment consisting of stoves, kitchen equipment, dining room equipment, beds, mattresses, etc., cash amounting to $19,000, bank deposits in the amount of $6,000; that Mrs. Leath and the defendant Williams in 1956 entered into a conspiracy to defraud plaintiff of his rights in the partnership property and pursuant to said conspiracy the bank deposit and other personal property of the partnership had been transferred and delivered by Mrs. Leath to the defendant Williams; that she had conveyed to Williams the partnership real estate; that Mrs. Leath was, in February 1956, physically and mentally unable to perform her part of the partnership contract; that defendants Williams had wrongfully excluded plaintiff from possession and control of the partnership properties.

Plaintiff seeks an adjudication of title and right to possession of the real and personal properties conveyed by Mrs. Leath to defendants, a settlement and accounting of the partnership affairs, and distribution of the partnership properties to the partners in accord with their respective rights after the discharge of partnership obligations.

The demurrer admits the truth of the allegations. The partnership was dissolved, G.S. § 59-62. Upon dissolution plaintiff was entitled to an accounting and appropriate application of all of the partnership property. Casey v. Grantham, 239 N.C. 121, 79 S.E.2d 735.

The interest of John P. Leath and Beulah Leath in the partnership was personal property, even though part of the partnership assets was real estate. G.S. § 59-56. Hence upon the death of the partners, their respective personal representatives were properly made parties to prosecute and defend on behalf of their intestates. Ewing v. Caldwell, 243 N.C. 18, 89 S.E.2d 774.

Woodrow Williams is properly a party defendant, not because he happens to be the heir of Beulah Leath, but because of his wrongful possession and assertion of title to the partnership assets. The fact that he happens to be the heir of a deceased partner affords him no immunity. There is nothing in Ewing v. Caldwell, supra, that lends support to that argument.

Plaintiff is not, as defendant argues, limited to a claim against the estate of Mrs. Leath. He is entitled to his share of the partnership assets ascertained upon an accounting. Nor is plaintiff compelled to bring an action to establish the partnership (a fact admitted by the demurrer), and when that fact has been judicially declared, then another action for an accounting. He is entitled to have the entire controversy settled in one action. G.S. § 1-69; Dawson Bank v. Harris, 84 N.C. 206; Owen v. Hines, 227 N.C. 236, 41 S.E.2d 739.

The demurrer filed here is overruled. The judgment appealed from is

Affirmed.