Musser v. Edmunds

• Decision Date: 23 April 1901
• Parties: A. MILTON MUSSER, Appellant, v. J. W. EDMUNDS, Administrator of the Estate of Josiah H. E. Webster, Deceased, and GEORGE Q. CANNON & SONS, a Corporation, Respondents
• Court: Utah Supreme Court

64 P. 1105

23 Utah 425

A. MILTON MUSSER, Appellant, v. J. W. EDMUNDS, Administrator of the Estate of Josiah H. E. Webster, Deceased, and GEORGE Q. CANNON & SONS, a Corporation, Respondents

Supreme Court of Utah

April 23, 1901

Appeal from the Third District Court, Salt Lake County.--Hon. Ogden Hiles, Judge.

Action for an accounting and an injunction pendente lite. From an interlocutory judgment for an accounting plaintiff appealed.

APPEAL DISMISSED.

Messrs Wilson & Smith, Richard B. Shepard, Esq., Harrison D Shepard, Esq., and Allen T. Sanford, Esq., for appellant.

Messrs Frick & Edwards and John M. Cannon Esq., for respondents.

BASKIN J. Bartch J., and Hart, D. J., concur.

OPINION

BASKIN, J.

The character of this action is shown by the following quotation from the prayer of the complaint: "Wherefore, plaintiff demands judgment against said defendant Josiah H. E. Webster, for a full, true and correct accounting of all moneys, funds and resources of whatever kind and nature connected with the affairs of the partnership existing between said plaintiff and said defendant, Webster, pertaining to said co-partnership. That during the pendency of this suit Josiah H. E. Webster be enjoined and restrained from appropriating any moneys belonging to said co-partnership, now in his hands, or collect any account due said co-partnership until an accounting is had in this matter; and that a receiver be appointed to take charge of the assets of said co-partnership during the pendency of this action, and that the court adjudge and decree to this plaintiff the sum of $ 5,000 upon said accounting, which is due said plaintiff upon said co-partnership."

The defendant, Josiah H. E. Webster, set out in his answer, facts under which he claimed that the plaintiff was not entitled to an accounting, and prayed that it be adjudged that the plaintiff take nothing in the action.

Upon a hearing of the case, the trial court, among other findings of fact, found: "That after the plaintiff became a member of said co-partnership, considerable sums of money were collected for and on account of the said co-partnership, and considerable sums were disbursed on account of the expenses thereof; but how much such collections and disbursements amount to, and what balance, if any, there remains due to plaintiff upon a true accounting can not be determined from the evidence elicited at the trial. That the said defendant, Josiah H. E....