Jones v. Quayle

• Decision Date: 09 May 1893
• Citation: 3 Idaho 640,32 P. 1134
• Parties: JONES v. QUAYLE
• Court: Idaho Supreme Court

32 P. 1134

3 Idaho 640

JONES v. QUAYLE

Supreme Court of Idaho

May 9, 1893

PRACTICE-BILL OF EXCEPTIONS.-Where no bill of exceptions or statement agreed to and signed by the attorneys, or settled and signed by the judge, appears in the record, this court cannot review the evidence in an appeal from the judgment.

ORDERS NOT APPEALABLE.-An order denying motion to discharge a receiver, overruling a demurrer, or adopting the report of a referee, is not appealable under our statute.

RECEIVER-WHEN SHOULD BE APPOINTED.-Where a party has property in his possession and under his control which he allows to depreciate in value, or wrongfully disposes of, in which another party has an interest, it is proper for the court to appoint a receiver.

SUPPLYING RECORD.-This court will not supply deficiencies in a record by inference or supposition.

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Affirmed, with costs.

Spence & Chalmers, for Appellants.

This is a case in equity for a partnership accounting. There must be an existing partnership. In this case, Jones and Quayle had dissolved partnership and agreed to a manner of settlement. The settlement of the partnership affairs was out of their hands and beyond their interference. While both partners might invoke a court of equity, alleging mistake, error or fraud, and ask a revocation of their acts, it is beyond the power of one of the partners to attack his own voluntary act when resisted by the other. (Stretch v. Talmadge, 65 Cal. 510, 4 P. 513; 2 Bates on Partnership, secs. 909, 679.) An adequate remedy at law exists and a court of equity cannot be invoked. (2 Bates on Partnership, secs. 857-860.) Neither partner has the right to change contracts. (2 Bates on Partnership, 727.) The answer denies all the equities, hence the receiver should have been discharged. (High on Receivers secs. 24, 491.) Before a receiver can be appointed there must be an existing partnership. (High on Receivers, secs. 473, 477, 486, 491.) Defendant was entitled to notice of motion to appoint receiver. (High on Receivers, sec. 502.) The receiver's bond is not such a bond as required by sections 400 to 421 of the Revised Statutes of Idaho for the following reasons: 1. It is not made payable to the territory or state of Idaho (See Idaho Rev. Stats., secs. 400, 421); 2. That it is not justified as required by section 397 of the Revised Statutes of Idaho; 3. It is not approved as required by sections 394, 395 of the Revised Statutes of Idaho. The order appointing referee calls for "findings of fact," and not "conclusions of law," as recited in report. The findings of fact by referee is a special verdict, and cannot be made to take the place of a general verdict, and should therefore have been set aside. (See Idaho Rev. Stats., secs. 4396, 4421; Paulson v. Numan, 64 Colo. 291.) This court can review intermediate orders necessarily affecting the judgment. (See Hayne on New Trial and Appeal, secs. 195, 262.)

Hawley & Reeves and Smith & Smith, for Respondent.

Counsel for appellant in his brief, in that portion which he has pleased to call "argument," beginning at the top of page 7 and extending to about the middle of page 11, cites the court to many legal propositions, many of which are probably correct, some of which are manifestly incorrect. The application of these propositions to the case at bar is not attempted by the learned counsel who files the brief, and therefore we are left to guess what they are put in the brief for. Many of the propositions stated, in fact nearly the whole of them, are utterly irrelevant, and however correct they may be in the abstract, do not enlighten us one particle in this investigation. We might as well cite an authority as follows: "God said let there be light and there was light." (See Holy Bible, Genesis, c. 1.)

HUSTON, C. J. Morgan and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

This purports, by the notice of appeal in the record, to be an appeal from a judgment "entered on the day of , 188 ; . . . . also from the order denying defendants' motion to discharge receiver, made herein on the minutes of the court; also from the order adopting the report of the referee made and entered on the twenty-ninth day of April, 1892; also from the order denying defendants' motion to stay execution on said judgment, made and entered on the sixteenth day of November, 1892." The notice of appeal was filed November 22, 1892. There is no proof of service of the notice of appeal. There is no bill of exceptions in the record, nor does it appear that any statement was ever agreed to or signed by the attorneys of the parties, or settled or signed by the judge of the district court or by the referee. The appeal from the judgment not having been taken within sixty days after entry of the judgment, we could not review the evidence, were it properly before us, which it is not.

What purports to be the report of the referee appears in the record, but it does not appear in any bill of exceptions or statement prepared as required by the Code of Procedure. The order denying the defendants' motion to discharge the receiver is not an appealable order, nor...