Opinion
6 Div. 25.
November 11, 1920.
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
Morris Loveman, of Birmingham, for appellant.
The bill fails to show the existence of a partnership in such sense as to give the court jurisdiction of the subject-matter. 100 Ala. 362, 14 So. 488; 147 Ala. 512, 40 So. 319; 180 Ala. 3, 60 So. 63; 94 Ala. 116, 10 So. 80, 33 Am. St. Rep. 97; 53 Ala. 205, 25 Am. Rep. 607; 59 Ala. 587. The complainant is not entitled to any division of the real estate or any of the partnership property until provision has been made for the payment of the partnership debt. 2 Stew. 378; 19 Ala. 596, 54 Am. Dec. 200; 24 Ala. 37; 102 Ala. 431, 15 So. 560, 28 L.R.A. 161, 48 Am. St. Rep. 56; 50 So. 281.
W. M. Woodall, of Birmingham, for appellee.
The amendment did not constitute a departure. 56 Ala. 147; 62 Ala. 550; 188 Ala. 449, 66 So. 22; 200 Ala. 595, 76 So. 953. As last amended, the bill sufficiently shows a partnership. 129 Ala. 258, 30 So. 91; 59 Ala. 587; 62 Ala. 358; 37 Ala. 201. In Alabama, partnership real estate is considered as personalty for the purpose of sale, for the payment of partnership debts and division of assets between partners. 92 Ala. 522, 9 So. 182, 25 Am. St. Rep. 83; 62 Ala. 358; 23 Ala. 337. Under the prayer of the bill, the debts must be ascertained and paid before anything else is done. 90 Ala. 470, 7 So. 920; 30 Cyc. 749.
The allegations of the bill of complaint as last amended do not show any departure from the cause of action exhibited, or from the nature of the relief sought, by the original bill. The partnership as to which dissolution and settlement are sought is obviously one and the same, and its identity is not impeached by the elimination of immaterial allegations as to its origin and inducements, or by the addition of allegations showing terms which are variant from those originally alleged.
The subject-matter and the relief remaining substantially unchanged, the amendment was properly allowed as a matter of right, and the amended bill was not subject to demurrer as for a departure. McGhee v. Alexander, 104 Ala. 116, 16 So. 148; Ward v. Patton, 75 Ala. 207.
The bill as last amended sufficiently shows the contract and status of partnership, including the necessary stipulation that each of the partners should share in the profits and losses in said business. Howze v. Patterson, 53 Ala. 205, 207, 25 Am.Rep. 607; Causler v. Wharton, 62 Ala. 358, 362.
But it is to be observed that a court of equity has jurisdiction to compel accounting and settlement between joint adventurers who are quasi, but not technical, partners. Saunders v. McDonough, 191 Ala. 119, 67 So. 591. And while the relief which might be granted in such a case under the general prayer would rest upon a different basis, the failure to show a technical partnership would not affect the equity of the bill, nor prevent the granting of appropriate relief.
"As a rule creditors are neither necessary nor proper parties to a suit between partners for a firm settlement and accounting." 30 Cyc. 724.
No creditors have been made parties to this suit, and the rights of creditors are not at issue. In determining the share of liquidated assets to be finally awarded to the several partners, the amount of the firm's indebtedness must of necessity be ascertained and deducted from gross assets, and this would be done with or without a prayer to that effect.
If upon the ascertainment of the amount due this complainant, the case made by the bill being established, the respondent should elect to pay and satisfy the claim, and assume the firm indebtedness to the satisfaction of complainant, it would seem to be unnecessary to liquidate the assets or disturb respondent in the further prosecution of the business. Otherwise, the relief sought would involve a sale of the entire assets of the firm, including good will, and the practice usually is to make provision for notice to creditors, and allow them an opportunity for filing and proving their claims, and sharing in the distribution as they may be entitled. 30 Cyc. 746(c).
We hold that the bill as last amended contains equity, and is not subject to any of the special grounds of demurrer insisted upon.
Let the judgment be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.