Falkner v. Hendy
Citations
- 107 Cal. 49
- 40 P. 21
- 1895 Cal. LEXIS 710
Syllabus
<p>Partnership—Action for Accounting — Use of Trust Funds by Db-ceased Copartner—Presentation of Claim.—In an action for an accounting of a partnership, where the plaintiff claimed that the defendant had realized a large amount of money from the use of trust funds which the plaintiff was entitled to recover, and in which he seeks to obtain a large money judgment against the defendant, as his copartner, and against a corporation organized by him to carry on his business, upon the death of the copartner defendant, during the pendency of the action, it is necessary that the claim should be presented to the executors of his estate, and, if objection is made t% proceeding with the trial upon the ground that the claim was not presented for allowance, a judgment in favor of the plaintiff will be reversed upon appeal.</p> <p>Id.—Exception to Judgment—Nonpresentation of Claim — Review upon Appeal.—An exception to the entry of judgment against the executors and executrix of a deceased defendant, on the ground that no claim had been presented to them, and that the decision was against law, in giving judgment against them without proof of the presentation of the claim, is not, in effect, an objection to the decision on the ground that it was not sustained by the evidence; and such exception may be reviewed upon appeal, although the appeal was not taken within sixty days after the rendition of the judgment.</p> <p>Id.—Duty to Present Claim—Knowledge of Death of Adversary.— Litigants must know at their peril of the death of an adversary, and a plaintiff seeking a judgment against the defendant is not entitled to recover a judgment which will bind his estate, unless within the period allowed by law for the presentation of claims a presentation has been made to the representative of the decedent.</p> <p>Appeal—Reversal of Judgment—New Trial.—An unqualified reversal of a judgment by the supreme court has the effect to remand the cause for a new trial.</p>
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