Barry v. Briggs

• Decision Date: 06 January 1871
• Citation: 22 Mich. 201
• Court: Michigan Supreme Court
• Parties: Charles S. Barry, Ex. of John S. Barry, v. John K. Briggs

22 Mich. 201

Charles S. Barry, Ex. of John S. Barry, v. John K. Briggs

Supreme Court of Michigan

January 6, 1871

Heard January 4, 1871; January 5, 1871. [Syllabus Material]

Motion to dismiss an appeal.

A bill was filed in the circuit court for the county of St. Joseph in chancery, by Charles H. Barry, executor of John S. Barry against John K. Briggs, setting forth the existence for many years of a partnership between John S. Barry and the defendant, which had been dissolved by the death of Barry and praying for an account of all partnership dealings and transactions; that the defendant might be enjoined from collecting any debts or money, and from disposing of any part of them; and for the appointment of a receiver.

On filing the bill, notice was given of a motion before the circuit judge at chambers for the appointment of a receiver according to the prayer of the bill; and on hearing the motion the circuit judge directed the entering of an order:

"That a receiver of the stock, goods, materials, implements, premises, outstanding debts, and all moneys, notes, accounts and effects of the late partnership of the said John S. Barry and the defendant, John K. Briggs, carried on in Constantine, in the county of St. Joseph and state of Michigan, under the name and style of John K. Briggs, and in the pleadings in this cause mentioned, be appointed." And after directing a reference to a circuit court commissioner to appoint such receiver, further ordered that the defendant, John K. Briggs, do and he is hereby ordered and required to deliver over to such person so to be appointed receiver forthwith all and every the said stock, merchandise, goods, premises, outstanding debts, moneys, property, effects and assets of said partnership, whether in his hands or under the control of his clerks, agents or attorneys, including the money, effects or assets received since the said John S. Barry's death, with all the books, deeds, writings, documents, vouchers and papers relating thereto, or relating to any part or portion thereof, etc. The said complainant and defendant were each enjoined from receiving any debts due or to become due said (late) firm, and from collecting them, or from in any way meddling with the store or its assets, including the accounts, notes, debts, etc.

The receiver was required to take charge of and hold all the estates, property, debts and effects aforesaid, or the proceeds thereof, and the books and papers aforesaid, subject to the order and direction of the court.

From this order appointing a receiver, the defendant appeals to this court, and the complainant now moves to dismiss the appeal.

Motion to dismiss this appeal denied, with ten dollars costs.

Shipman & Loveridge, H. F. Severens, and S. C. Coffinberry, for the motion:

The appointment of a receiver being pendente lite is in the strictest sense subordinate and ancillary to the suit, as much so as the granting of an injunction. It is neither a decree nor a final order. The question of whether a decree or order is final within the meaning of the statute relating to appeals, must have reference to the principal object of the bill in the particular case in which such question arises: Campau v. Duncan, 15 Mich. 415; Wing v. Warren, 2 Doug. 288 and 293; Caswell v. Comstock, 6 Mich. 391; Perkins v. Fourniquet, 6 How. 206; Craighead v. Wilson, 18 How. 199; Beebe v. Russel, 19 How. 283; Haminston v. Stainthorp, 2 Wal. 106; Wood v. Brewer, 9 Ind. 86; Fuller v. Adams, 12 Ind. 559; Kingsbury v. Kingsbury, 19 Mich.; 6 How. 209; Ib., 202; 10 Ohio St., 622.

The appointment of a receiver in this case does not involve the determination of any right, or affect the title of either party in any manner whatever: 1 Barb. Ch. Pr., 658. The exercise of the power of appointing a receiver rests in the discretion of the court, and when appointed, he acts as an officer of the court in the preservation of the subject of litigation, or the rents and profits of it, from waste, loss or destruction, so that there may be some fruits to gather at the end of the controversy: 1 Barb. Ch. Pr., 658-9; 2 Dan. Ch. Pr., 1406, et seq

It is the usual practice in this class of cases to appoint a receiver if the parties cannot agree among themselves as to the disposition and control of the property: 1 Barb. Ch. Pr., 661-2.

H. H. Riley and N. A. Balch, contra:

Is the order appointing a receiver subject to appeal? We think it is. It certainly and finally disposes of the primary and principal right of the defendant. 1st. It prevents him discharging his duties as the representative of the late firm of Briggs & Barry, to their creditors. 2d. To their debtors. 3d. To the legal representatives of the deceased partner. 4th. To himself, by depriving him of that personal skill in watching over and taking care of the funds in which he is so directly and deeply interested personally, and as a trustee for others. The order disposes of the defendant's right to a great degree: Lewis v. Campau, 14 Mich. 449; Callanan v. Shaw, 19 Iowa 183; Thompson v. Pickel, 20 Iowa 490; Outman v. Bond, 15 Wis. 20; Wabash Canal Co. v. Beers, 1 Black (U.S.), 54; State v. Northern Railway Co., 18 Md. 193; Ely v. Frisbie, 14 La. 687; Succession of Thompson, 14 La. 810; In re Fleming's Petition, 16 Wis. 75; Kennedy v. Kennedy, 3 Ala. 434.

OPINION

Campbell, Ch. J.

An appeal was taken in this case from an order of the circuit court for St. Joseph county, directing the appointment of a receiver to take charge and dispose of all the property held by defendant as surviving partner of a firm in which John S. Barry was interested during his life. The bill was filed by Barry's executor.

A motion is now made to dismiss this appeal, on the ground that the order appealed from is neither a decree nor a final order.

The decision recently made in Kingsbury v. Kingsbury, in which the various kinds of orders and decrees which have been passed upon by this court were collected and compared, renders it unnecessary to report the classification at length. It may be said in brief, that the nature of any order, as a decree or final order, or as not final, depends entirely on the effect produced by the adjudication upon the rights and interests of parties; and that the usual distinction between interlocutory and other orders depending on the cause in which they are made, is not the test for appellate purposes. An adjudication made at any stage of a cause may have such an effect as to render it appealable. The case of Lewis v. Campau, 14 Mich. 458, is an example of this. The order appealed from in that case was made at a very early stage of the controversy. And it is only after considering the operation of the order now before us, that we can properly determine its appealable character.

The bill was filed by the executor of a deceased partner against the only surviving partner, who appears by the bill to have had general management of the business and to have conducted it under his own name, but for the joint benefit, during Governor Barry's life. The assets are averred to be large, and defendant is shown to have a beneficial interest in them. The object of the bill is to have the assets taken from his charge and put into the hands of a receiver, and the business wound up under the direction of the court.

The order appealed from was made upon a motion noticed for hearing at chambers seven days after the bill was sworn to. The time for appearing had not...