
    No. 284
    ANDERSON v. NAT’L FIRE INS. CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1634.
    Decided Feb. 8, 1926
    891. PARTNERSHIP — Where a surviving partner does not take over the assets of a partnership, he cannot maintain an action in his own name for Ms partnership interest.
   YOUNG, J.

The National Fire Insurance Co. issued a policy to cover fire loss on an auto trailer owned by Charles Anderson and William Leidner, partners, said truck being used in the furtherance of their business. While the policy was in force the trailer was destroyed by fire and Leidner received injuries which resulted in his death.

This action was brought in the Lucas Common Pleas by Leidner’s administratrix and the surviving partner, Anderson, to recover on the policy. A petition was also filed by the receiver of the partnership asking leave to be joined as party plaintiff also.

The case was heard and the Insurance Co. objected to the introduction of evidence on the grounds that, the petition did not constitute a cause of action and that Anderson was without authority and capacity to maintain an action against it.

Thereupon Anderson asked the court to allow evidence to be submitted to bring before the court, the receiver, and to join him in the action, on the ground that it was necessary to have all the parties before the court, which request the court refused. The petition of Anderson was dismissed. Error was prosecuted and the Court of Appeals held:

1. It appears that Anderson did not take over the assets of the partnership and this action was commenced before a receiver was appointed.
2. Although Anderson has an interest in the property in question, such rights are governed by statute and the receiver is the only one who can maintain such an action.

Attorneys — C. A. Thatcher, C. A. Meek, for Anderson; Geo. H. Lewis, Wm. H. McLellan, for Insurance Co.; all of Toledo.

3. If the court below had granted the motion it would have resulted in a misjoinder of parties.
4. “An action shall be brought in the name of the real party at interest, and the court did not err in overruling the motion of Anderson.

Judgment affirmed.  