This is an action to recover on a fire insurance policy. The defendant company issued a policy on one Detroit four-wheeled trailer against loss by fire arising from any cause whatever. At the time this policy was issued, the trailer was owned by and was the property of Charles O. Anderson and William J. Leidner, partners, and was used by them in the furtherance of the partnership business. While the policy was in force, the *Page 210 trailer was completely and totally destroyed by fire, and at the same time William J. Leidner received burns which resulted in his death.
After his death, Amelia E. Riker was appointed administratrix of his estate. This action was then begun in the court of common pleas by the surviving partner and the administratrix to recover the amount of the insurance named in the policy. To this petition an answer was filed by the company, and to the answer a reply was filed by plaintiffs. Two motions were also filed, one on the part of Irvin F. La Bounty, as receiver of the assets and estate of said Leidner and Anderson, to be made a party with leave to plead, and the other by plaintiffs herein that Irvin F. La Bounty, as receiver, be made a party plaintiff in said action. There were separate hearings on these motions. On the hearing of the last motion, evidence was introduced by plaintiffs to support the same, a certified copy of the record of the probate court, showing the appointment and qualification of said Irvin F. La Bounty as receiver of said partnership estate was admitted, and a bill of exceptions was taken setting out the evidence. Subsequently the cause came on for hearing before another branch of the court and a jury, and the plaintiffs proceeded to introduce evidence, to which the defendant objected, for the reason that the petition did not state sufficient facts to constitute a cause of action, that plaintiffs herein were without authority and capacity to maintain this action against the defendant company, and defendant asked the court to dismiss the action of the plaintiffs. After argument by counsel, the court granted *Page 211 defendant's motion, and, over the objection of plaintiffs, dismissed the petition, and rendered judgment in favor of the defendant. Thereupon the plaintiffs again asked leave of court to make Irvin F. La Bounty, receiver of the Leidner and Anderson company, a party to the action, on the alleged ground that it was necessary to have all the parties before the court. Evidence was thereupon introduced for the purpose of showing the appointment and qualification of said receiver by the probate court of this county, and, upon consideration, the court refused to grant the request of the plaintiffs, to which the plaintiffs excepted. Upon the overruling of a motion for new trial, error was prosecuted to this court, and, among the alleged errors assigned, and upon which plaintiffs rely, are, first, that the court erred in the refusal to admit evidence, and, second, in the refusal to allow plaintiffs to bring in additional parties.
It is urged by the defendant that the action was not brought in the name of the real parties in interest; that, one of the partners having died, the partnership ceased. The statute provides the method in which an action may be brought upon the death of one or more partners. Section 8085, General Code. It will be observed that the surviving partner did not take over the assets of the partnership, and this action was begun by the plaintiffs before a receiver was appointed. It is urged, however, by the plaintiffs in error, that the surviving partner still maintains his interest in the partnership property, and that he has a right to represent his own interests in the partnership until at least such a time as a receiver *Page 212 is appointed and qualified to take over the property. There is no doubt that the surviving partners do retain their respective interests in partnership property, but, inasmuch as their right to maintain actions respecting partnership property is governed by statute, we are of the opinion that the receiver is the only person having a right to represent the parties in this action. To have granted the motion of plaintiffs, therefore, would have resulted in a misjoinder of parties plaintiff. Section 11241, General Code, provides that an action shall be brought in the name of the real party. As the case now stands of record in this court, no party having a legal interest in the case is a party plaintiff in error.
In the final summing up of the issues in this case, it seems to us that the real and vital question to determine is who is the real party in interest, or, in other words, in whom was the right to maintain the action? Having decided this, we deem further comment unnecessary.
Judgment affirmed.
RICHARDS and WILLIAMS, JJ., concur. *Page 213