Fitzpatrick v. Rogan
| Decision Date | 10 January 1922 |
| Docket Number | 1050 |
| Parties | FITZPATRICK v. ROGAN |
| Court | Wyoming Supreme Court |
ERROR to the District Court of Sweetwater County, HON. JOHN R ARNOLD, Judge.
Action by John F. Fitzpatrick against Frank P. Rogan and wife for accounting dissolution of partnership also for injunction and receivership pending suit. From an order denying the application of plaintiff for the appointment of a receiver pending dissolution and accounting, plaintiff brings error.
Reversed.
T. S Taliaferro and W. A. Muir, for plaintiff in error.
The defendants below contended that in view of the terms of the partnership agreement they could, by serving notice of their election take over and purchase the interests of plaintiff in error, thereby terminating the partnership and take exclusive possession of all of the partnership assets. Plaintiff below contended that he was not required to accept the offer of defendants to purchase his interest at the price offered but was entitled to a receiver pending his suit for dissolution and an accounting. The trial court refused to appoint a receiver and thereby denied the rights of plaintiff in error and ignored a well settled principle of law. (Anderson v Lemon, 8 N.Y. 236; Mitchell v. Redd, 63 N.Y. 123.) The taking over of the entire assets of the partnership deprived plaintiff below of the value of the good will of an established business as well as the value of the real estate. The petition itself prays for a receiver pending the dissolution and accounting of the firm business, plaintiff having been excluded from possession was entitled to a receiver. (Hattenstein v. Conrad, 9 Kans. 298.) This Kansas case is a clear exposition of the principles of law that should control the present controversy. A fair reading of the petition and pleadings would show that a receiver pendente lite was applied for. We believe the question of error is fairly presented here on the record proper and that a bill of exceptions is unnecessary for review. We feel that the authorities cited in the former opinion of May 3, 1921, in case No. 1016 are not germane to the real question here. In this case we rest entirely upon the principle of the petition, asking for a receiver pendente lite; the petition is a part of the record proper. The fact that this part of the prayer of the petition was brought to the attention of the trial court by a written motion cannot alter the situation. The Ohio cases dealing with the question as to what is, or what is not, a part of the record proper have not gone so far as to say that an error that can be fairly drawn from that which is proper in the record will not be considered because of the manner in which it is brought to the attention of the trial court, whether it be by written or oral motion. Moreover, Section 6376 Comp. Stats. 1920 provides for bringing up the original papers. A motion is an original paper. (Garner v. State, 23 O. St. 196.) There was no bill of exceptions, but the court, under the authority of Section 6376 (R. S. O. 6716) considered the motion. (Sleet v. Williams, 21 O. St. 82; Whittaker's Annot. Code, 7th Ed. 5903 (R. S. O. 5334, new section 11607) states that it is unnecessary to include a motion in the bill of exceptions. (9 CD520; 17 CC 152, 2 CC156.)
Brown and DeNise, for defendants in error.
Plaintiff was not entitled to a receiver upon his showing. Defendants conformed to the letter of the partnership agreement with reference to the retirement of either of the partners. The appointment of a receiver is discretionary. (34 Cyc. 21.) Such an appointment is an equitable execution and the power to appoint is a delicate one which should be executed with considerable caution. (23 R. C. L. 10.) The partnership was terminated on March 20th, 1920. Every change in personnel of a firm works a dissolution and in fact creates a new partnership. (20 R. C. L. 954.) The agreement between the parties authorizes either of the partners to withdraw upon thirty days notice. This was done and it has the effect of dissolving the partnership. There was no showing of fraud. There was no showing that the property in question was in danger of loss or injury, destruction or waste or removed from the jurisdiction of the court. The contentions of plaintiff in error were adjudicated adversely to him in case No. 1016; the motion for receiver and order denying the same are not properly before this court for review, there being no bill of exceptions bringing the same into the record. This point has been decided repeatedly by this court adverse to the contentions made by plaintiff in error.
T. S. Taliaferro and W. A. Muir, in reply.
The application for a receiver was heard upon the petition and answer below. Confiscation and conversion of assets is admitted by the answer.
A mere denial in the answer may not be invoked to defeat the appointment of a receiver. (Anderson v. Lemon, 8 N.Y. 236; Lacy v. Hall, 37 Pa. State, 360; Forrer v. Exors., 29 Gratton 134; Mitchell v. Reed, 61 N.Y. 123.) The inventory and accounting alleged to have been made and agreed upon is a disputed issue. The case presents a situation where one partner has by serving a written notice on the other partner, proceeded to take possession of all partnership assets, to conduct the business and retain all the benefits thereof, while the partner who has been wrongfully eliminated from the business has been denied a remedy of any sort by the courts. Upon the admission in the answer of defendants in error, the ruling and order of the court below should be reversed and the cause remanded for proper action in accordance with the equity and justice of the case.
This case is here on error for the review of an order denying an application of the plaintiff in error, the plaintiff below, for the appointment of a receiver of partnership property and assets as a provisional remedy pending the action brought by the plaintiff for dissolution and accounting. A prior proceeding in error for the review of the same order was dismissed by this court without prejudice. (See Fitzpatrick v. Rogan, 27 Wyo. 388, 197 P. 565.)
The primary reason stated for dismissing the former proceeding was that the overruling of the plaintiff's motion for a new trial was the only error assigned, and no such motion had been brought into the record by bill of exceptions, the only manner in which, according to our rules and the long established practice in this jurisdiction, such a motion with the ruling thereon and exception thereto can be made a part of the record for consideration in a proceeding in error. And we expressed a doubt as to the sufficiency of said assignment of error for the further reason that a motion for a new trial might not have been necessary or proper to present the question again in the district court or to preserve an exception to the order complained of, so as to render the assignment sufficient under our rule applicable to proceedings in error that the ruling upon each matter properly presented in the court below by a motion for a new trial shall be sufficiently questioned in this court by an assignment that the court erred in overruling such motion.
It was further stated in the opinion, however, that a consideration of the question presented upon the merits of the cause would be prevented for the further reason that the motion upon which the hearing was had in the court below had not been brought into the record by a bill of exceptions; and the principle was stated, citing decisions of this court in support thereof, that a bill was necessary to make the motion a part of the record. And in that connection it was said that while the petition contains a prayer for the appointment of a receiver, it does not ask for such appointment pendente lite, and it did not appear that the application was made upon that prayer, but, on the contrary, that it was made by motion, after the issues had been made up by the filing of the necessary pleadings.
Defendants in error have filed a motion to dismiss this proceeding in error upon the ground that the record is insufficient to authorize a review of the order complained of, and our former opinion aforesaid is referred to in the motion as stating the reasons more particularly. And the cause has been submitted upon that motion and also upon the merits. The principal reasons that were stated for dismissing the other proceeding do not apply to this, for the assignments of error are different in this proceeding, as will presently appear, leaving as the only ground upon which the motion can rest, the failure to bring into the record by bill of exceptions the motion upon which the hearing for the appointment of a receiver was had, the ruling thereon and the exception to the ruling. But for reasons which will be stated in explaining our view of the case as now presented, we think the motion to dismiss should be denied.
The petition in error in the present proceeding specifically assigns as error the order refusing to appoint a receiver pendente lite, alleging it to be contrary to law, and that plaintiff's application should have been granted upon the facts admitted by the pleadings. And it is contended that the prayer for the appointment of a receiver is sufficient to cover or include such appointment pendente lite, that it was so intended and was so understood by the parties.
The briefs, as well as the record in the former proceeding, have been filed also in this, and an additional brief has been filed by each of the parties, that of defendants in error being in support of their motion to dismiss, and the additional brief of plaintiff in error explaining in his behalf that when the petition in error in the...
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