Dickens v. Dickens

• Decision Date: 16 November 1911
• Citation: 56 So. 809,174 Ala. 345
• Parties: DICKENS v. DICKENS (TWO CASES.
• Court: Alabama Supreme Court

56 So. 809

174 Ala. 345

DICKENS v. DICKENS (TWO CASES.

Supreme Court of Alabama

November 16, 1911

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Suit by Carrie McGill Dickens against Charles C. Dickens, in which defendant sought cross-relief. From decrees for complainant both defendant and complainant appeal. Affirmed on both appeals.

See also, 56 So. 806.

The plea referred to in the opinion as filed by Carrie McGill Dickens is as follows: "And for further defense to so much of said cross-bill as seeks an accounting of the partnership matters prior to the 1st day of June, 1903, this respondent pleads specially, and says that the affairs of the partnership heretofore existing between the said J. O Dickens and Charles C. Dickens was settled between the partners themselves from time to time, and accounts adjusted by them by mutual consent. Further answering, this respondent shows unto your honor that one of said settlements took place on May 1, 1886, another on June 1, 1887, another on June 1, 1888, another on May 31, 1889, another on May 1, 1890, another on May 31, 1891, another on June 1, 1898, another on June 1, 1899, another in June, 1900, another on June 1, 1901, and another on June 1, 1902, and that the last of said settlements took place in June, 1903. At each of said times the status of the partnership matters were fully agreed upon between the said J. O. Dickens and Charles C. Dickens, and it was fully agreed between the said J. O. Dickens and Charles C. Dickens that the said J. O. Dickens was entitled to an undivided two-thirds interest in the assets of said partnership, and the said Charles C. Dickens entitled to the other one-third interest, without accountability for past transactions. Therefore this cross-bill cannot be maintained by the cross-complainant for a settlement of the partnership affairs prior to the said 1st day of June, 1902."

So much of the decree of September 30, 1909, as refers to the plea above set forth is as follows: "It is further adjudged that the facts alleged in the plea as filed by the respondent to the cross-bill on April 15, 1908, are true, and that the affairs of the said partnership, which existed between the said J. O. Dickens and the said Charles C. Dickens, were settled between the partners themselves from time to time, and their accounts adjusted by them by mutual consent, and that the last of said settlements took place on the 1st day of June, 1903, at which time the status of the partnership matters were fully agreed upon between Charles C. Dickens and James O. Dickens, and it is further agreed between them that James O. Dickens was entitled to an undivided two-thirds interest in the partnership assets then on hand, and that Charles C. Dickens was entitled to a one-third undivided interest therein; and it is therefore ordered, adjudged, and decreed that the complainant, Carrie McGill Dickens, is entitled to, and the said Charles C. Dickens is hereby ordered to make, a just, true, and correct accounting of the affairs of said copartnership, commencing with and dated upon the said settlement of copartnership affairs as made between James O. Dickens, deceased, and Charles C. Dickens, on said 1st day of June, 1903, as the same appears from the books of said copartnership, and that said settlement shall embrace all transactions of said copartnership, and of said surviving partner in winding up said business, and as administrator down to the time of said accounting, and shall be upon the basis of the ownership of said Charles C. Dickens of one-third interest in said copartnership, and the ownership of James O. Dickens, deceased, of a two-thirds interest therein; that Mrs. Carrie McGill Dickens shall have and recover from Charles C. Dickens whatever balance, if any, may appear to be due from said settlement by the said Charles C. Dickens to the estate of the said James O. Dickens, deceased."

The other parts of the decree, find the fact of the partnership, the fact that Charles C. Dickens had failed to make a just, true, and correct accounting of the affairs of the partnership, either as surviving partner or as administrator, that Mrs. Carrie McGill Dickens is the only heir at law and distributee of the estate of James O. Dickens, and is, therefore, entitled to such accounting. The rest of the decree deals with the appointment of a special master, and the reference to him of the accounts and affairs involved for statement and report.

Webb & McAlpine, for appellant.

Gregory L. & H. T. Smith, for appellee.

McCLELLAN J.

When the main cause was before this court on former appeal, its general nature and object were there stated: "The bill is exhibited by a distributee of the estate of a deceased member of a copartnership, against the surviving partner, who is also the administrator of the estate of the intestate, and prays the removal of the estate for administration from the probate into the chancery court of Mobile county, the removal of the administrator for causes averred, and for an accounting in the premises by the surviving partner in respects of his acts and doings in performance of the trust involved in the winding up of the dissolved (by death) copartnership, and also that injunctive process issue to conserve the interests of all parties in the assets of the concern, and that a receiver be appointed to take charge of such assets." Another incidental phase of the litigation is shown in Ex parte Dickens, 162 Ala. 272, 50 So. 218, and still another in Dickens v. Dickens (in MS.) 56 So. 806. The respondent Charles C. Dickens' answer in the main cause was made a cross-bill, whereby he sought an accounting of the affairs of the English Manufacturing Company from its organization, alleged an indebtedness of James O. Dickens to the copartnership above his (James O. Dickens') interest therein, and prayed other action consistent with the winding up and settlement of the concern. On the main appeal seven errors are assigned. That numbered 5 is expressly waived in brief for appellant.

The first assignment is as follows: "Because the court erred in ascertaining and decreeing that the respondent is indebted to complainant. Record, p. 1494."

The second assignment is as follows: "Because the court erred in decreeing that the respondent is largely indebted to the complainant. Record, p. 1494."

Were it at this time important, it might, under our practice (Rule 1, S. C. Prac., Civil Code 1907, p. 1506), be at least questioned whether these assignments are not too general and indefinite to present any particular matter for review. Feagan v. Kendall, 43 Ala. 628, 631; Alexander v. Rea, 50 Ala. 450; Morris v. Poillon, 50 Ala. 403; Robinson v. Murphy, 69 Ala. 543; Craig v. Pierson Co., 169 Ala. 548, 53 So. 803. We do not find it necessary to determine the matter at this time.

The record paging in these assignments refers to the last decree rendered by the chancellor, on May 14, 1910. By way of premise, in this decree, it is recited, to state the substance, that by previous decree the report of the special master, Mr. Clarke, had been confirmed. In this report the special master ascertained the indebtedness of the respondent. The decree to which that of May 14, 1910, made reference was the decree of May 11, 1910, which overruled the exceptions of respondent to the special master's report and confirmed it in all respects. In the decree of May 14, 1910, the net indebtedness, upon the basis of the aggregate indebtedness found by the special master, was adjudged in favor of complainant. In the decree of September 30, 1909, wherein the relations of the respondent to the copartnership, the English Manufacturing Company, and to the estate of James O. Dickens, deceased, were found and declared, a reference to the special master was ordered to state the accounts in the premises. In this decree the chancellor adjudged that James O. Dickens and Charles C. Dickens, constituting the English Manufacturing Company, had made on the 1st day of June, 1903, the last of a number of settlements of the partnership, "at which time (June 1, 1903) the status of the partnership matters were fully agreed upon between Charles C. Dickens and James O. Dickens, and it was fully agreed between them that James O. Dickens was entitled to an undivided two-thirds interest in the partnership assets then on hand, and that Charles C. Dickens was entitled to a one-third undivided interest therein." The adjudication in the decree of September 30, 1909, with respect to the settlement of June 1, 1903, was invited by a plea, filed April 15, 1908, by Carrie McGill Dickens, to Charles C. Dickens' cross-bill, wherein he sought an accounting of the partnership affairs from its creation in 1885. The report of the appeal will contain this plea, as also the decree of September 30, 1909. Other assignments of error, as we understand them, question the correctness of the chancellor's ruling, in the particular that the accounting, consistent with the theory of the plea of April 15, 1908, was restricted to a period beginning June 1, 1903. The assignments raising, in substance, this question, are those numbered 3, 4, and 6. Neither of the assignments numbered 1 and 2 raise the question of the propriety of the court's action in overruling the respondent's exceptions (assuming, for the occasion only, that the paper purporting to present exceptions of respondent to the report of the special master was serviceable to that end. Rule 93, Ch. Court Prac., Civil Code 1907, p. 1556; McGuire v. Appling, 157 Ala. 309, 47 So. 700) to the report of the special master in the particular indicated.

Waiving,...