Swanson

This is an appeal from a judgment which was rendered in favor of the plaintiff in a suit in replevin, which was brought by a surviving partner against the administratrix of the estate of the deceased partner and others, to recover the possession of partnership property.

The appellant contends the findings and judgment are not supported by the evidence; that the cause was for an accounting and that the trial court was without jurisdiction to render judgment for the reason that no claim was filed against the estate of Siem under the provisions of section 1500 of the Code of Civil Procedure (sec. 716, Probate Code), and that the court erred in admitting evidence of declarations of the deceased partner as proof of the existence of a copartnership.

The complaint alleges that in January, 1924, the plaintiff and Ernest Siem entered into an agreement of copartnership for the purpose of engaging in the business of raising, purchasing and marketing livestock; that they were each to furnish real property for the raising and care of the stock, devote their personal attention to the business and participate equally in the profits and losses thereof. It was then alleged that Ernest Siem died…