LACKETT 'V; RUMBAUGH.
(O£reuit Cowrt,W.'D. North OaroUna.' January lIS,1891.)
ATlACBMENT-BERVIOE lIT PotlLIOATION..;..JUBIsD1CTrON.
Where,ll.naction is comlllenced in a, court against threl'lpartnerB, one ot whom is not served, and no alia8 summons.!s issued, the suit as to him is at an end, and a'subsequent attachment upon an aildavit of and order ot thopgh by thjl Code of North Caroij.:na, iii! yoj.t:i, as the, fed" eral court cannot thus acquire jUrisdiction without the service otprocess in personam on defendant. :' , , ' ,
The general appearance of defendant partner ,not served with process without entering apy plea is not a waiver of the lack of of the oourt m, respeot , ', " ' , , , to the subJeolrttlllttet. Where 'partners among wbomdissensions have arisen, fInalty compromisethelr ditfl1renOO!l by two of them agreeing to pay the debts, releasing the third from all liability, in consideration of himself and wifl1"Conveying to the,others their est ln'the partnership realty and being paid 12,0750ut of tbe'insuriloJlce money for th,e buUdil:igs destroyed before theconipromise.'and the pat'ttter thus released:em:. powers hill, attorney ',to receiv,e the inlilurance, ,monWin tru"t for ,wife, ill paid to the attorney by tbe other OD condition that it snail not be paid to the Wife until she and ,her hU,sband have exeouted the'deeds aeeording ,1;6 the cOIDp,romise. the. fUlj.d in tnehands ,of the, is a trust ,fund, pot su t.o $!'arnishment by the lIartnership Cl'editors, prillI.',to a compliance !:lY ail of the par' :",' , ties Witb the con;ditionsofthe.coll1proinise. Tbe insurance money wasool1ected,and tbesum al1;reed to l;Illpaid'to thl} released partner Wl 8 by bisdire/l1libn paid to·an attorney Ifor the' benefit of bis wife, at' the ut:gent dem!'nd o.f of separate !ll!tAilte wflo.ll8!i pat:ll ot tbll tho]lgh she, a. partner., ,The wife:s, property m the 'consideratioofor transferrmg this fund to ,tier WM her'ilitill'est ib ·the propertV i"eleasedtotfle other partners. Partnll1'shipl1reditors sued-.he:firm. and garnJilhed this fund. 'Held, that it was not subject to tneir debts. Where a husband au4,wife purch8ll8 an fnterelt iIi partnerllbip'realty, the bUI!I,band bein!l' a partner, R!lt tJ:!e ",ifenot, and the cashpaymentis lllade With fUnds of the wife's leparateequitable estate, a deetl ,beiu&: madeto the .husband and to a trulltee·for the wife, anl118 mortgage for the uupald balance ;glven back, by, the grslltees which deed and are a,fter",ards, d!lSWllyed by tJ1e, ,consent of the patotles, except the trustee 10r the wife, and' another deed is exeouted to the wife, whll give a deed of trust for' the uDpaidpurchase money, ,the rights of the trustee for the wife are notafleoted, but h8:is entitled as against the husband's creditors to the 'latteI"il proportioti of the insurance money arising froll1 tq.e of the by , ',
'SEPARATE l!:S1'A:TB-i'RusTEB' O-tLRIGBTS.'
CQNVETA::NOEs.."..CoNlllDEUP6N-WD'JI'S lNTER,EsT J1I!' HUllBAND'S taliD.
At La.w. !: This ,is an action at-law in which a controversy hssansen between the plaintiffs, and persons ,,,:ho :have been allowed to iDterplead and set up title toafund brought into,thecustcidy of·the court by attachment pro.. ceedinga instituted by the ,plaintiffs. F. A. BoudletJ, P. A.OumwingB, and OharleaPrice, for plaintiffs., Cobb & forinterpleaders.
j,: · .
The counse).of'tllil parties have waived-a triM by jury ilild submitted all questions by, the' court; In' performihgthis duty I will conform a.an to the prfflmplesoflawlindtbe niles 'Of; practice whieh: have·, bee'l' '8nll'ouneedhyl the stale ancl.1federal
FEDERAL REPORTER ,
supreme courts in the cases Raimond v. Terrebonne Parish, 132 U. 8.192, 10 Sup. Ct. Rep. 57; Battle v.Mayo, 102 N. C. 413, 9 8. E. Rep. 384. The counsel on both sides have submitted arguments and briefs uresenting statements.of facts which they deem established by the evidence, and their views upon the questions of law involved. I will state my findings of facts separately., somewhat in the form of a special verdict, containing the ultimate facts presenting questions of)aw; and in giving my conclusions of law I willrefer to the pleadings, the evidence, 'c!tnd the surrounding circumstances tending to prove, directly or by inference,theultimate facts found by the investigation·
. FINDINGS OF FACTS.
(1) "The defendants JamesH. Rumbaugh, W. W. Rollins, and Joseph CQmposed the Warm Springs Company, and were jointly indebted .to the plaintiffs in the sum stated in the complaint in this action'.. (2) The Warm Springs Company was dissolved by the mutual consent of the partners, find upon terms expressed in a written contract on the 23d day of May, 1885. This contract was the result ofa compromise effected by M. E. Carter, the legal counsel and mutual friend of the pa.rties.There had been personal difficulties and much litigation between the parties, and these were all adjusted and settled by the compromise. (3) The hotel buildings and furniture belonging to the Warm Springs Company were destroyed by fire in December, 1884, and the insurance companies refused to pay any part of the insurance money until Joseph one ofthe insured, should sign the proof of loss, as well as the other parties insured. This Pettyjohn refused to do until some agreement should be made adjusting the claims of himself and wife as to their insured interests in the destroyed property. (4) The terfus.of the compromise were, in substance, that all litigation between the partners was to be discontinued, and all claims of indebtednessagainst,Pettyjohn were to be canceled and surrendered; that he was to be relieved from all liability to creditors incurred as a partner in the Warm Springs Company; that all the indebtedness of the company was assumed and agreed to be paid by Rumbaugh and Rollins; and that he was to receive $2,500 of the insurance money, if the whole amount ($53,000) of the policies was recovered, or a proportional sum if a less amount was obtained. Pettyjohn and wife were to convey to Rumbaugh all their interest in the property of the company, and release all claims that might arise out of former joint business relations; and Pettyjohn was to assist Rumbaugh and Rollins, as far as he could,in collecting the .insurance money·. (5) A compromise was effected with the insurance companies, and Rumbaugh and Rollins received $44,000, and they paid to M. E. Carter $2,075, to be held by him under a power of attorney executed by Pettyjohn for the benefit of Jesse M. Pettyjohn, trustee of the separate: equitl:\ble" estate of Mrs. Pettyjohn. Under instructions from and R91lins this fund was to be kept by M. E. Carter, and was IlQttO become the property of Pettyjohn or to be paid over to Jesse Joseph Pettyjohn and wife executed the quit-