Costello v. Scott

• Decision Date: 07 March 1908
• Docket Number: 1,723.
• Citation: 94 P. 222,30 Nev. 43
• Parties: COSTELLO et al. v. SCOTT et al.
• Court: Nevada Supreme Court

94 P. 222

30 Nev. 43

COSTELLO et al. v. SCOTT et al.

No. 1,723.

Supreme Court of Nevada

March 7, 1908

On petition for rehearing. Former opinion modified.

For former opinion, see 93 P. 1.

NORCROSS J.

Counsel for appellants have filed a petition for rehearing in this cause upon several grounds. The opinion heretofore rendered (93 P. 1), covers satisfactorily, we think, all points raised in the petition, with one exception. Counsel in his petition says: "The judgment in the case at bar is not a final settlement of the partnership affairs. Paragraph 16 gives plaintiffs judgment against defendant Scott for $2,182.60 upon which execution may issue. This is also a separate judgment for costs of $936. Also a separate judgment for one-half of the mining property. There is no balance struck. The judgment is for separate items of the partnership account. In paragraph 18 the plaintiffs are given judgment for one-half of all the moneys in the custody of the receiver, gross, and plaintiffs are entitled to have the same delivered to them eo instante. No account has been rendered by the receiver, who has possession of all the property. We submit that this judgment is indefinite and uncertain; so much so that this court cannot permit its execution or attempted execution by the lower court. It is to be executed piecemeal.

In part by the delivery of specific real property; in part by execution upon separate items for money judgments; in part by the delivery of a divided one-half of money in the receiver's hands as against the claims of the receiver himself and the creditors of the estate, and those having prior charges against the property itself, to be paid out of those funds, where there is no balance struck as between the contending litigants. Confusion must arise upon attempting to satisfy, by execution, the separate items, when the officer may levy upon the very property directed by the other part of the judgment to be delivered to plaintiffs. The record does not show that the receiver possesses sufficient to pay his own claims and expenses, and, if his account were first settled, the court might direct to be paid to him, out of the funds of the estate, such an amount that there could be no independent judgment for separate money items. The court might find it necessary to sell all the real property to pay creditors, or other claimants, and the sale of all the real property, and division of the proceeds is the usual and ordinary method of settlement in partnership affairs." Even if there was room for argument as to whether the judgment rendered in this cause was a final judgment appellants by treating it as such, and appealing therefrom are estopped to deny the finality of the decree. State v. Commissioners, 22 Nev. 78, 35 P. 485; Clark v. Dunnam, 46 Cal. 204; Bigelow on Estoppel, p. 601.

The judgment in this case determined all the material issues raised by the pleadings. It determined the existence of the partnership, and ordered dissolution thereof. It gave to the plaintiffs an undivided half interest in certain described mining claims determined to have belonged to the partnership. It gave judgment against defendant Scott for one-half of $4,500, less certain specified deductions, the said sum of $4,500 having been received by Scott upon account of the partnership affairs prior to the institution of the suit and the appointment of the receiver. It further allowed plaintiffs their costs, taxed at $936.15.

The decree also contains the following provisions: "It is further ordered, and said plaintiffs are hereby adjudged and decreed to be entitled to take, receive, and have delivered to them an undivided one-half of any and all moneys or other consideration now in the keeping, custody, or control of R. L. Douglass, receiver herein, and which moneys or consideration has accrued or is accruing to the interest heretofore held, owned, or claimed by the defendant Scott in the mining claims and premises herein mentioned, and plaintiffs are hereby adjudged to be entitled to a delivery of the same, and are hereby given judgment therefor. It is further ordered, adjudged, and decreed that the said R. L. Douglass, receiver herein, be, and he is hereby, directed to forthwith make a full account of all his acts and proceedings herein, and render the same to the court, and to forthwith transfer, pay, and deliver to the plaintiffs herein, or their attorneys of record, an undivided one-half of any and all moneys or other consideration, received and now held by him as such receiver, and accruing to the interest heretofore standing in the name of and claimed by the said codefendant Fitzpatrick in said townsite premises, and also to forthwith transfer, pay, and deliver to plaintiffs, or their attorneys of record, an undivided one-half of any and all moneys or other consideration received and now held by him as such receiver, and accruing to the interest, part, and share in said contracts for the sale of certain of the aforesaid mining claims and heretofore standing in the name of and claimed by the said defendant Scott." The decree concludes as follows: "The court hereby reserves the right to make a supplemental decree herein on proper showing made for that purpose, as to any other or further property, if any, belonging to said copartnership, and not adjudicated upon or included herein." The objections made to that portion of the decree giving the respondents judgment for one-half of all moneys in the hands of the trustee go largely to the question of the finality of the decree. These objections would not be well taken, even if they could now be raised.

In Bates on Partnership, § 970, the author says: "A decree finding the existence of a partnership and ordering a dissolution, or finding the fact and time of dissolution, and settling the proportions of...