O'Kelley v. Clark

• Decision Date: 11 November 1913
• Citation: 63 So. 948,184 Ala. 391
• Court: Alabama Supreme Court
• Parties: O'KELLEY v. CLARK.

63 So. 948

184 Ala. 391

O'KELLEY v. CLARK.

Supreme Court of Alabama

November 11, 1913

Rehearing Denied Dec. 18, 1913

Appeal from Chancery Court, Geneva County; L.D. Gardner, Chancellor.

Bill by D.B. O'Kelley against Dan Clark, to dissolve a partnership and for an accounting. Decree for respondent, and complainant appeals. Affirmed.

The appellant and appellee were partners under the firm name of City Pharmacists, engaged in the retail drug business. The respondent filed an answer to the bill, admitting the partnership, and admitting a sale by him of the goods and business without the cooperation of complainant, but alleging that such sale was justified by the necessities of the case. The complainant owned an undivided one-third interest in the partnership, and the respondent the remaining interest. The answer was not made a cross-bill, and did not seek any affirmative relief against complainant. Testimony was taken primarily to the decree of reference, and certain objections and exceptions were filed. On August 8, 1910, the parties filed a note of submission, and in response to this submission, the chancellor on March 3, 1911, ordered a reference to the register. This order was executed on December 1, 1911, by the register taking the testimony of respondent, Clark, with the recital that complainant did not appear. On December 4th the register reported on this reference, and on December 11, 1911, respondent filed a note of submission. On February 15, 1912, the parties to the cause agreed in writing that the report of December 4, 1911, and the reference held be set aside, and it was further agreed that the register should, on that date, proceed to hold a reference in accordance with said named decree, and that on the reference so held, all the testimony heretofore taken in the cause by each party, including the testimony of respondent on the reference heretofore held by the register and already referred to, may be used and considered by the register in making his report. It was further agreed that on the coming in of the report each party should have a reasonable time in which to file exceptions and objections. Reference was held on the 15th of February, and in the report it is shown that in accordance with the above foregoing agreement of counsel filed in the cause this day, the register proceeded and held the record. The complainant filed exceptions to the report, one of the exceptions being "Said report is not supported by the testimony in this case, which was before the register on reference, and the conclusion of the register in his report is inconsistent with the testimony in the case and the testimony that was before the register on the reference."

W.R Chapman, of Dothan, and W.O. Mulkey, of Geneva, for appellant.

C.D Carmichael, of Geneva, for appellee.

ANDERSON J.

It is a well-settled rule in equity practice that a defendant will be granted affirmative relief only on cross-bill. 5 Encyc. of ...