Opinion
22783.
SUBMITTED JANUARY 11, 1965.
DECIDED FEBRUARY 4, 1965. REHEARING DENIED FEBRUARY 18, 1965.
Equitable petition. Jackson Superior Court. Before Judge Smith.
J. N. Rainey, E. C. Stark, for plaintiff in error.
Wheeler, Robinson Thompson, Davis Davidson, Harben Harben, Sam S. Harben, Sam S. Harben, Jr., contra.
The intervenor, being a creditor holding a claim against the partners or their representatives after their deaths, does not come under Code § 3-709 in seeking relief against the receiver holding the partnership assets in trust, and his right of action was barred after four years. The lower court did not err in sustaining the demurrer on the ground that the petition showed on its face that it was barred by the statute of limitation and in dismissing the intervention.
SUBMITTED JANUARY 11, 1965 — DECIDED FEBRUARY 4, 1965 — REHEARING DENIED FEBRUARY 18, 1965.
Litigation involving this business enterprise has previously been in this court in Murphy v. Murphy, 214 Ga. 602 ( 106 S.E.2d 280). For a review of the pleadings and the parties and the history of the case reference is here made to the first appearance. However, the case now before this court involves only the claim of an intervenor, the plaintiff in error here, for services rendered T. W. Murphy Sons in a stated amount plus sums allegedly paid out by him in running the business, less sums due the business in the purchase of a farm and other items. The intervention, as amended, alleges, that between the dates of January 1, 1955, and February 28, 1957, as confidential clerk to the surviving partners and/or partner he rendered such services to the business, and the heirs or representatives of the deceased partner and/or partners had knowledge of said services and ratified same; and the receiver having taken over all the remaining assets of said partnership holds the same in trust for the payment of the debts, including the reasonable value of his services, private funds advanced by him to protect the business, less certain sums due the business by him; and he is entitled to judgment in a stated amount. Count 2 of the intervention adopts, in substance, the allegations of count 1 and further alleges that the intervenor had an express contract in parol with one of the surviving partners before his death wherein he was to receive a salary, and he is entitled to the balance due him as shown.
After a hearing on demurrers filed to the intervention, they were sustained, and the court dismissed both counts. The exception is to that judgment.
The intervention, in substance, alleges a suit for payment of salary, funds paid out by a confidential clerk in the running of the business, less the value of a small farm and other items received by him from the business; and that his actions were ratified by the surviving partner or partners and/or their representatives or heirs of the deceased partner or partners. Litigation involving the business began October 18, 1956 ( Murphy v. Murphy, 214 Ga. 602, supra). The services of the intervenor for which he seeks pay began January 1, 1955, and ended February 28, 1957, a few months after litigation to appoint a receiver began, but he failed to file this intervention until April 24, 1964. The petition shows on its face that the statute of limitation of four years has run on his action for salary as a creditor (see Code §§ 3-706, 3-707, 3-711; Mobley v. Murray County, 178 Ga. 388, 173 S.E. 680; Leonard v. Cesaroni, 98 Ga. App. 715, 106 S.E.2d 362); and while it is extremely doubtful that he could maintain the action against anyone except the surviving partner or partners who employed him ( Code §§ 75-109, 75-310), the allegations of ratification being insufficient, yet he is certainly guilty of laches in failing to file his intervention in this case until this late date, almost four years after the statute of limitation of four years as a creditor and more than seven years after the original suit was filed and after the deaths of all of the partners. See Code §§ 3-712, 3-713, 37-119.
While counsel cites Code § 3-709 and a number of cases involving beneficiaries of estates against administrators or trustees, and apparently seeks to maintain that the intervenor has 10 years after the right of action has accrued to sue the receiver as trustee or the representatives of the individual estates of the deceased partners, yet as a mere creditor he is subject to the statute of limitation of four years; and this action is barred on its face. See McNaught Co. v. Bostick, 71 Ga. 782; Coney v. Horne, 93 Ga. 723, 726 ( 20 S.E. 213); Murray v. Baldwin, 69 Ga. App. 473, 476 ( 26 S.E.2d 133); Herrington v. Herrington, 70 Ga. App. 768, 771 ( 29 S.E.2d 516); Higginbotham v. Adams, 192 Ga. 203 (2) ( 14 S.E.2d 856). Compare Thornton v. Jackson, 129 Ga. 700 ( 59 S.E. 905).
The demurrer squarely raises the issue of the statute of limitation, and the court did not err in sustaining it and in dismissing the intervention.
Judgment affirmed. All the Justices concur.