Summary
In Security State Bank v. McCoy, 219 Neb. 132, 361 N.W.2d 514 (1985), we affirmed the judgments and held that under Neb. Rev. Stat. § 25-316 (Reissue 1985), the bank could not proceed against the individual partners until there was a showing that the property of the partnership had been exhausted.
Summary of this case from Security State Bank v. GugelmanOpinion
Nos. 83-789, 83-790.
Filed February 1, 1985.
Actions: Pleadings: Judgments: Partnerships. If the plaintiff, in any judgment so rendered against any company or partnership, shall seek to charge the individual property of the persons composing such company or firm, it shall be lawful for him to file a bill in equity against the several members thereof, setting forth his judgment and the insufficiency of the partnership property to satisfy the same, and to have a decree for the debt, and an award of execution against all such persons, or any of them, as may appear to have been members of such company, association, or firm.
Appeal from the District Court for Furnas County: JACK H. HENDRIX, Judge. Affirmed.
James E. Doyle of Cook Kopf, P.C., for appellant, and, on brief, Knudsen, Berkheimer, Richardson Endacott.
Charles J. Cuypers of Sherwood Cuypers, for appellee Gugelman.
BOSLAUGH, WHITE, and CAPORALE, JJ., and RIST, D.J., and COLWELL, D.J., Retired.
The appellant, Security State Bank, brought suit in the district court against the defendants, who were doing business as Antiques Etc., a partnership, and against the individual partners on a series of promissory notes signed on behalf of the partnership by one of the partners, Marian E. McCoy, in favor of appellant. The two cases were consolidated for trial. A summary judgment was granted in favor of the bank against Antiques Etc., and following a trial to the court, a judgment was rendered against the bank and in favor of partner and appellee Raymond L. Gugelman on each of the notes. Marian McCoy filed bankruptcy, and no further proceedings were had against her.
Security State Bank appeals. We affirm, though on grounds different from those relied on by the trial court.
In its suit against the partnership and the partners individually, appellant apparently overlooked Neb. Rev. Stat. § 25-316 (Reissue 1979), which states:
If the plaintiff, in any judgment so rendered against any company or partnership, shall seek to charge the individual property of the persons composing such company or firm, it shall be lawful for him to file a bill in equity against the several members thereof, setting forth his judgment and the insufficiency of the partnership property to satisfy the same, and to have a decree for the debt, and an award of execution against all such persons, or any of them as may appear to have been members of such company, association or firm.
This statute has been the law in Nebraska since 1867.
In an early case, Ruth v. Lowrey, 10 Neb. 260, 262, 4 N.W. 977, 978 (1880), interpreting this statute, the court in refusing to enforce a Wyoming judgment against certain Nebraska partners commented: "There is no allegation in the petition that the partnership property in Wyoming is insufficient to satisfy the judgments, nor is there any proof tending to show that such is the case."
Although in this case there is a suggestion that the inventory was sold to partially satisfy partnership debts, there was no prior judgment against the partnership, which the statute contemplates as a condition precedent to the bringing of an action against individual partners. See, also, Leach v. Milburn Wagon Co., 14 Neb. 106, 15 N.W. 232 (1883).
AFFIRMED.