Kingsbury v. Kingsbury

• Decision Date: 19 April 1870
• Citation: 20 Mich. 212
• Court: Michigan Supreme Court
• Parties: Charles Kingsbury v. Asa Kingsbury

20 Mich. 212

Charles Kingsbury v. Asa Kingsbury

Supreme Court of Michigan

April 19, 1870

Heard April 14, 1870

Motion to dismiss an appeal in Chancery from the Cass Circuit

The bill was filed by Charles Kingsbury against Asa Kingsbury for an account of partnership dealings, and transactions, and the cause having been brought to a hearing on bill and answer the Court "ordered that it be referred to Strother M Beeson, a special Commissioner, to take an account between the parties as to all matters growing out of their partnership relations, and that said special Commissioner state said account from the first day of August, A. D (1842), eighteen hundred and forty-two; and also a separate statement of said account commencing at the date of the partnership articles referred to in said bill, to wit: April twenty-fifth, in the year of our Lord one thousand eight hundred and forty-four. In taking of such account, the said Commissioner is to make to all parties just allowances, with a statement thereof. And for the better taking of the same and the discovery of the matters aforesaid, they are to produce before said special Commissioner, on or before the twentieth day of September next, and leave with said special Commissioner, all deeds, mortgages, bonds and transfers, conveyances, books, papers and writings, in their custody, or power, relating to said partnership transactions whether the said transactions have been conducted in the name of the co-partnership or either of the parties thereto, and also an inventory of all personal property, including moneys; and said parties are to be examined on interrogatories or otherwise, as the said special Commissioner shall direct; and the said special Commissioner is hereby directed to make a report of the matters hereby referred to him, with all convenient speed, and if in taking said account any special matter shall arise, the said Commissioner is at liberty to state the same."

The Commissioner proceeded to take testimony which he certified to the Court with his opinion thereon; to which exceptions were taken by the complainant. The cause was brought on to be heard upon the exceptions, all of which were disallowed, and the report of the Commissioner was confirmed. The complainant appeals to this Court; and the defendant moves to dismiss the appeal.

Appeal dismissed with costs of the motion.

D. Blackman, for the motion.

C. I. Walker, contra.

OPINION

Campbell, Ch. J.

A motion is made to dismiss this appeal on the ground that the order confirming a Commissioner's report upon a partnership accounting, is neither a decree nor a final order, as contemplated by the statute regulating appeals.

The appellant claims that the order does in fact decide upon the merits, and is therefore a decree. If it does so adjudicate, it was held in Campau v. Lewis, 14 Mich. 458, that it would be appealable, though not deciding the whole case; and if, as claimed, the rights passed upon, can not be reviewed at all unless on this appeal, there can be no doubt of its propriety. But we think the nature of the order and its consequences have been misapprehended.

The order under which the reference was had in this cause did not adjudicate finally upon anything, and merely required the Commissioner to examine and state the accounts of the partnership, without first adjudging when it was made, or on what terms, and without attempting to prejudge any important fact whatever. Until the report should come in and become absolute, there could be no decision at all upon the real merits of the cause. The proceedings reported were expected to enable the Court to obtain a proper basis for decision.

But a mere confirmation of the report, is not a final decision of the cause. The case must after such confirmation be brought on to be heard, and upon the final hearing, if the facts are sufficiently presented to make a decree, the Court will then proceed to adjudicate and direct what remedy is to be had against either party, and give its decree in such a shape that it can be enforced. The present order contains no such feature.

In acting upon a report, the Master or Commissioner's conclusions either of law or fact, are of no consequence, if not sustained by the facts found on which he bases them. The Court will decide as the facts warrant, and if the parties are satisfied with the facts themselves, they need not except because the Commissioner has mistaken the legal consequences.--Adams v. Claxton 6 Ves 226.--And it is always in the power of the Court before decree to send the case back to the Commissioner, or to order an issue, even if there is such doubt as seems to...