Morey v. Grant
| Decision Date | 25 April 1882 |
| Citation | 12 N.W. 202,48 Mich. 326 |
| Court | Michigan Supreme Court |
| Parties | MOREY v. GRANT. |
An order made when a cause in chancery is ripe for final hearing on pleadings and proofs, which appoints a receiver of partnership property, is appealable, notwithstanding it does not in terms purport to be final.
A receiver should not be appointed at that stage of the case except upon an adjudication of copartnership and with decree for accounting.
An order for receiver in a partnership case should be of all the partnership estate. If it is of property in a particular place only, and does not describe that or distinguish it from the individual property of the partner who is assumed to be in possession and to have property there, it is erroneous.
Appeal from Kent.
E.S. Eggleston, for complainant.
Drury & Maher, for defendant and appellant.
The bill in this case was filed for the purpose of winding up the affairs of a copartnership which was alleged to exist between the parties for the purpose of keeping a hotel in a building known as the Barnard House. The bill prayed for an accounting and a receiver. The defendant answered to the merits and proofs were taken. It was not disputed that a partnership had existed between the parties, but the defendant claimed that complainant had voluntarily taken himself out of the business. On both sides it was agreed that defendant was in possession of the Barnard House while the suit was in progress, and keeping it as a hotel. What property in the house belonged to the parties respectively or to the partnership was the subject of controversy, and evidence was gone into respecting it.
The case being in readiness for hearing on pleadings and proofs was called up and the following order or decree made:
[Title of cause.]
"On reading the pleadings and proofs in this cause, and after having heard the arguments of counsel, and on motion of Isaac H. Parrish, the solicitor for the complainant, it is ordered adjudged and decreed that David L. Stivens be and hereby is appointed receiver of property now in the Barnard House, so called, and which was in said house when this bill was filed, and which belonged to the firm of Morey & Grant, being all of the furniture and property therein except the private property of the defendant, John Grant; that such receiver make a careful inventory of all the property and filed the same with the register of this court; that before such receiver take possession of such property he must execute and file with the register of this court a bond in the sum of $2,000, to be signed by at least two sufficient sureties, to be approved by such register; and it is further ordered that such receiver hold said property to be disposed of according to the order of this court, but that he do not remove the same from said Barnard House, or interfere with the use of the same by defendant before the twelfth day of January next."
It is to be observed of this order:
1. That it does not purport to be interlocutory. It is made when the case stands for final hearing on the merits, and when nothing, so far as we can learn from the record, hinders a final disposition. It is made, therefore, when the final decree should have been or might have been made: it is a decree in fact; and we only infer that it was not intended to be final from the fact that it does not in terms completely dispose of the case.
2. That it assumes to appoint a receiver without any adjudication whatever. Even as an interlocutory order there should have been embraced in it a finding of such facts as would give authority for divesting the possession of the defendant, but...
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