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• Title: Bielenberg v. Higgins Et Al.
• Author : Supreme Court of Montana
• Release Date : January 13, 1929
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 63 KB

Description

Mining Partnership ? Rights of Surviving Partner ? Actions ? Recovery of Money Advanced for Use of Partnership ? Statutory Lien ? Executors and Administrators ? Powers of Special Administrators ? Pleading and Practice ? Limitations of Actions ? Appeal and Error ? Waiver of Assignment of Error ? Briefs. Appeal ? Briefs ? Assignment of Error not Argued Deemed Waived. 1. An assignment of error not argued in the brief of appellant will be treated on appeal as waived. Pleading and Practice ? Another Action Pending ? When Demurrer Does not Lie. 2. Where it does not appear from the complaint that there is another action pending between the same parties for the same cause, a demurrer to the pleading on that ground does not lie. Same ? Limitation of Actions ? Objection That Action not Commenced Within Time Limited must be Taken by Answer ? Burden of Proof. 3. Under section 9065, Revised Codes 1921, the objection that an action was not commenced within the time limited by law can be taken only by answer, and defendant has the burden of proving it as alleged. - Page 57 Partnership ? One Partner may not Sue Co-partner in Action at Law ? Exceptions. 4. The general rule that one partner may not sue his co-partner only by a bill in equity for an accounting or a dissolution of the partnership is subject to the exceptions that where the partners have agreed upon a settlement among themselves thus rendering an accounting unnecessary, or where the partnership is limited to a single purpose or when but a single item remains unadjusted, in either of which events one may sue the other at law. Same ? Right of Surviving Partner to Partnership Property ? Statute Applicable to General, not Mining Partnership. 5. The rule declared by section 10261, Revised Codes 1921, that in case of death of one member of a partnership the surviving partner has the right to the possession of all of the partnership property and to settle its business, and that the partnership assets form no part of the individual estate of the deceased partner until the partnership affairs have been wound up by the survivor applies to general trading partnerships only, not to mining partnerships. Mining Partnership ? How Dissolved. 6. Where mining partners cease working their mining property with the intention not again to resume operations, the partnership is dissolved, the dissolution not, however, operating to defeat rights which accrued while the partnership existed. Same ? Purpose of Lien Given by Statute to Member of Mining Partnership for Money Advanced by Him for Its Use. 7. The lien given by section 8053, Revised Codes 1921, to each member of a mining partnership on the partnership property for the debts due its creditors and for money advanced by him for its uses, is given for the purpose of enabling a partner to collect from his co-partner his proportion of an indebtedness which he has been compelled to pay. Same ? Special Administrators ? Power to Bring Action to Recover from Mining Partner of Decedent Proportionate Share of Debts of Partnership Paid by Decedent, Without Order of Court. 8. A special administrator by virtue of the provision of section 10111, Revised Codes 1921, conferring upon him the power to commence suits for "all necessary purposes" possessed by an administrator, has the right to maintain an action to recover from a mining partner of the decedent his proportionate share of debts of the partnership paid by decedent, and may do so without an order of court authorizing him to do so. - Page 58

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