SOMERVILLE v. SOMERVILLE

SOMERVILLE v. SOMERVILLE
1926 OK 576
247 P. 389
118 Okla. 259
Case Number: 16881
Decided: 06/22/1926
Supreme Court of Oklahoma

SOMERVILLE
v.
SOMERVILLE.

No. 16881

Commissioners' Opinion, Division No. 4.

Error from District Court, Muskogee County; Enloe V. Vernor, Judge.

Action by Maggie Somerville against W. R. Somerville to recover debt on note. The court sustained motion for judgment on pleadings in favor of the plaintiff, and defendant brings error. Reversed.

Syllabus

¶0 1. Partnership--Duty to Liquidate Partnership Upon Death of Partner and Account to Estate for Share.
The surviving partner or partners, upon the death of a member of the partnership, are required to settle the affairs of the partnership without delay, and account to the executor or administrator for any funds due the estate of the deceased partner after the liquidation of the partnership.
2. Same--Necessity for Appointment of Administrator.
Record examined; held, to be insufficient to support judgment in favor of the plaintiff.

Eck E. Brook, for plaintiff in error.

D. P. deGraffenried and A. M. deGraffenried, for defendants in error.

STEPHENSON, C.

¶1 Maggie Somerville commenced her action for debt on a promissory note against W. R. Somerville. The petition alleged the execution and delivery of the note by W. R. Somerville to the plaintiff, and that the note was due and unpaid. W. R. Somerville filed his answer, wherein he set forth that W. R. Somerville, E. R. Somerville, and Rubin DeGraw composed a partnership which owned and operated a drilling outfit. The answer further alleged that E. R. Somerville died and left surviving his wife, Maggie Somerville, and Julian Somerville, a minor son, as his next of kin, and that no administrator had been appointed for the estate of the decedent. The answer further sets forth that the note was executed and delivered to Maggie Somerville for the purpose of liquidating the interest or claim of E. R. Somerville in the drilling outfit. The answer also sets forth that the defendant does not know whether the amount claimed by plaintiff should be paid to her, or whether it should be paid to the estate of E. R. Somerville.

¶2 The plaintiff filed a motion for judgment on the pleading, which was sustained by the court. The defendant has perfected his appeal, and assigns as error for reversal the action of the court in sustaining the motion for judgment.