Seiker v. Pracht

• Decision Date: 09 June 1888
• Citation: 18 P. 718,39 Kan. 521
• Parties: GEORGE A. SEIKER v. FREDERICK PRACHT
• Court: Kansas Supreme Court

18 P. 718

39 Kan. 521

GEORGE A. SEIKER v. FREDERICK PRACHT

Supreme Court of Kansas

June 9, 1888

Error from Marion District Court.

ACTION for an accounting and a settlement of partnership business. Judgment for plaintiff Pracht on December 4, 1885. The defendant Seiker brings the case to this court. The opinion states the material facts.

Judgment affirmed.

Waters Chase & Tillotson, for plaintiff in error.

Keller & Dean, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.

This is an action for an accounting, and a settlement of partnership business, commenced by Pracht against Seiker in the Marion district court. The parties were partners from September 1, 1879, until on or about the 1st day of October 1880, in a general merchandise store, and selling agricultural implements on commission. Seiker kept the books, attended to the correspondence, and Pracht was the active manager and salesman. It appears that most of the capital was furnished by the defendant in error. All the issues were referred to a referee, who heard the testimony, and made a report that there was due Pracht from Seiker the sum of $ 3,039.58. In the record there is an admission in these words: "And the defendant admits that there was testimony tending to support the referee's report, but claims that he erred in not allowing testimony to be heard, as to the accounts between the parties in the firm of Pracht, Schultz & Co." Exceptions were filed to the report, but were overruled in the trial court. The report was approved, and a judgment rendered in favor of Pracht and against Seiker, for the amount found by the referee. A motion for a new trial was filed and overruled, and the cause is here.

Three principal assignments of error are relied on by the counsel for the plaintiff in error in their briefs. The first is, that the report was not made at the next term after the appointment of the referee. The exact facts are, that the referee was appointed at the June term, 1884, on the 13th day of June, by consent of both parties. We have not been able to find the order of reference in the record, and do not know whether by it the referee was required to report at any particular time. The next regular term of the district court of Marion county after the order of reference was made, was begun and held on the third Tuesday in October; and during this term the referee made no report, nor was there any order of the court made extending the time, nor has there been any order of the court asked for or made respecting this matter. The report of the referee was made and filed on the 5th day of July, 1885; so that one regular term of the court intervened between the date of the order of reference and the qualification of the referee and the report of his proceedings, without any order having been made at the intervening term continuing the reference or extending the time within which to report; and it is said that as a legal consequence, the referee had no authority to act, he not having been qualified until February 3, 1885.

We think that the plaintiff in error is not in a position to now take advantage of the failure to report at...