Johnson v. Mantz

• Decision Date: 07 April 1886
• Citation: 69 Iowa 710,27 N.W. 467
• Parties: JOHNSON v. MANTZ AND ANOTHER.
• Court: Iowa Supreme Court

69 Iowa 710

27 N.W. 467

JOHNSON

v.MANTZ AND ANOTHER.

Supreme Court of Iowa.

Filed April 7, 1886.

Appeal from Lee district court.

Action in chancery for the settlement of a partnership existing between plaintiff and defendant Mantz, and for an injunction restraining the Keokuk & Northwestern Railway Company from paying Mantz certain money owed by it to the firm. There was a decree in the court below for plaintiff. Defendants appeal.H. Scott and Howell & Son, for appellants.

F. H. Semple and W. D. Patterson, for appellee.

BECK, J.

1. The petition shows that the plaintiff and defendant Mantz are copartners in the business of quarrying stone; that the defendant the Keokuk & North western Railway Company is indebted to the firm in a large sum for stone sold to it; that plaintiff, having no access to the books of the firm, has no knowledge of the amounts of money received by Mantz, who, in the business, acts fraudulently and in bad faith, and is insolvent; that the railroad company is about to pay him a large sum of money which he claims is due him individually; and that plaintiff will suffer irreparable loss and injury thereby. The petition prays for an accounting between the partners, and that plaintiff have judgment for the amount due him; that a receiver be appointed to take charge of the business and property of the firm, and that a temporary injunction be allowed against the railroad company restraining it from paying over the money until a receiver be appointed in the case. On the day the petition was filed a temporary injunction was allowed, as prayed for in the petition. Defendant Mantz, by an answer and cross-bill, among other things, alleges cause for the dissolution of the firm, and an actual dissolution by agreement. He denies the charges of fraud and bad faith, and the allegation of the petition that he is insolvent, and refuses to make settlement with plaintiff of the affairs of the firm. He further denies that there is any sum due from the railroad company to the copartnership, and that whatever sum it owes is due to defendant individually on account of stone furnished by him from quarries in which plaintiff had no interest. The railroad company made no answer, and a default was entered against it for non-appearance in the case. The cause was sent to a referee, who returned two reports; and, after the last one was filed, a decree was entered in which a judgment was rendered against both defendants, Mantz and the railroad company, for $378.88. The referee reports no findings as to the amount of the indebtedness of the railroad company, and the decree makes no provision for the disposition of the property of the firm which the findings of the referee show to be on hand. The evidence taken by the referee is not before us.

2. We are of the opinion that the abstracts of the record, upon which the case is submitted to us, exhibit two manifest errors which we will proceed to point out. The decree against the railroad company for the amount found due to plaintiff from defendant Mantz is erroneous for two reasons: (1) No such relief it sought against that defendant in the petition, nor is general relief prayed for therein. All plaintiff asks, as against it, is that it be temporarily enjoined from paying the amount of its indebtedness until a receiver be appointed. Relief cannot be granted by a decree which is not specially prayed for, or is within the contemplation of a general prayer for relief. This is a familiar rule, in the support of which we cannot be expected to cite authorities. (2) The referee reports no findings as to the amount of the indebtedness of the railroad company to the firm. Surely it cannot be claimed that, without a finding by the referee as to such indebtedness, the court could, upon the report of the referee, render a judgment against the railroad company for the sum found to be due plaintiff from Mantz. The referee should have found whether the company owed the firm or Mantz; if the firm, the amount of such indebtedness. These propositions are too plain to admit of...