Gray v. Palmer & Eaton

Citations

• 9 Cal. 616

Syllabus

<p>A decree adjudging that a partnership existed between two of the parties to the action, and that another partnership existed between one of them and another party to the action, each partnership embracing all business and property, both real and personal, of the parties, and deciding that the one partnership is subject to the other, and directing an account to be taken, there being other parties to the action representing the interest of one of the partners in each partnership, is interlocutory, and not final.</p> <p>Such a decree does not ascertain the specific sum due to any of the partners, nor direct the disposition of the partnership property. It does not settle the present condition of the partners, but only the original terms of their partnership.</p> <p>In the “Act to regulate the settlement of the estates of deceased persons,” the words claimant and claim are used as synonymous with the words creditor and legal demand. It was not the scope and purpose of this action to establish claims against the estate, to be paid out in due course of administration.</p> <p>A surviving partner being entitled to the possession and control of the partnership effects, can proceed directly in the District Court to obtain the control, and to have a partition of the real estate belonging to the partnership, but standing in the name of his deceased partner,</p> <p>It was necessary to file this bill, and make the administrator, the widow, and the infant, parties, to rebut the presumption of ownership on the part of the estate, arising from the fact that the real estate stood upon the record in the name of the deceased, and the administrator had possession of the personal property. These objects could only be accomplished by proceedings in the District Court, as the Probate Court did not possess the judicial means of giving relief.</p> <p>Where there is but one clerk in the office of a public newspaper, his affidavit of the publication of summons, or notice, in said paper, is s