Taylor v. Sweet

• Decision Date: 25 April 1879
• Citation: 40 Mich. 736
• Court: Michigan Supreme Court
• Parties: Oliver N. Taylor v. Martin L. Sweet

40 Mich. 736

Oliver N. Taylor v. Martin L. Sweet

Supreme Court of Michigan

April 25, 1879

Submitted April 24, 1879

Appeal from Mason. Submitted April 23-24. Decided April 25.

Order reversed with costs.

White & McMahon for complainant urged that the order was proper and not appealable, and cited Lewis v. Campau, 14 Mich. 458; Duncan v. Campau, 15 Mich. 415; Boinay v. Coats, 17 Mich. 411; Kingsbury v Kingsbury, 20 Mich. 212; Rowley v. Van Benthuysen, 16 Wend. 379; E. & H. R. R. Co. v Varnum, 10 Ohio St., 622; C.S. & C. R. R. Co. v. Sloan 31 Ohio St. 1; George v. Craig, 6 Mo. 648: 1 Bland 150.

Norris & Uhl for defendant, argued that the order was final and appealable, and cited Hammond v. Place, Har. Ch., 439; Mich. Ins. Co. v. Whittemore, 12 Mich. 311; Lawrence v. Jarvis, 36 Mich. 281; Brown v. Bronson, 35 Mich. 415; Haines v. Haines, 35 Mich. 138; Detroit F. & M. Ins. Co. v. Renz, 33 Mich. 298; People v. Jones, 33 Mich. 303; McCabe v. Farnsworth, 27 Mich. 52; Damouth v. Klock, 28 Mich. 163; Chandler v. Chandler, 24 Mich. 176; Perkins v. Perkins, 16 Mich. 162; Romeyn v. Caplis, 17 Mich. 449; People v. Simonson, 9 Mich. 492; Bullard v. Green, 9 Mich. 222; Shaw v. Shaw, 9 Mich. 164; Webster v. Hitchcock, 11 Mich. 56; Baker v. Pierson, 5 Mich. 456; Benedict v. Thompson, 2 Doug. (Mich.), 299; a partner cannot ask nor a court grant him compensation for services rendered to the firm, High on Receivers, §§ 100, 142, 178, 510, 540, 542, 795; Parsons on Partnership, 230 c.

Cooley, J. Marston and Graves, JJ., concurred. Campbell, C.J., dissenting.

OPINION

Cooley, J.

The bill in this case is filed for the purpose of settling up the affairs of a copartnership between the parties, which was entered into April 5, 1873, for the manufacture and sale of lumber. Among the provisions of the copartnership articles was one that complainant was to have the supervision and control of the mill, but that he was to make no charge to the copartnership for his services, and that Cassius H. Sweet, a son of defendant, was to devote his time and attention to the business also without charge. The business was continued under the articles until May 20, 1878, when complainant began this suit. Defendant immediately, on being served with process, entered his appearance, and on the 21st day of May, 1878, by stipulation of parties, a consent order was entered appointing Charles E. Ressequie receiver, who was to continue the management of the mill and business. The receiver took possession at once, and the business went on as before. Nothing was said in the consent order about complainant and Cassius H. Sweet continuing their services in the business, but they did so without any new arrangement. Defendant filed his answer consenting to the dissolution of the copartnership, and the case was put at issue, and referred to a commissioner for the taking of proofs. On September 17, 1878, complainant presented a petition to the circuit court averring the importance of his services in the business of the mill, and that he was unable to give his time to it without compensation, and praying for an order directing the receiver to pay to him such sum as to the court should seem reasonable, monthly, either by way of payment for his services, allowing an equal sum to defendant for the services of Cassius H. Sweet, or by way of allowance to petitioner out of the profits of the business, allowing an equal amount to defendant. The application was resisted, but the court made an order the material parts of which are as follows:

"That said receiver pay to either or both of the parties to this cause, that shall apply to him for the same, the sum of three hundred dollars, as and for the full amount allowed by way of allowance or pay for services or in any other manner, since the appointment of said receiver up to and including the 30th day of September, 1878, such payment to be made, if demanded, within five days after service upon said receiver, of a certified copy of this order, and that thereafter during the pending of said suit, until the further order of this court, said receiver pay to either or both of said parties hereto requesting the same, the sum of one hundred dollars monthly, as and for the full allowance to either or both of said parties by way of wages or otherwise, and that receiver charge the sums so paid to said parties, to the one to whom the same is paid, to be allowed and accounted for on final settlement.

"It is further ordered that said payment and allowance be without any reference to accounts of the parties to said suit, appearing upon the books of the firm of Sweet & Taylor at the time of the appointment of said receiver, and that the direction to said receiver, contained in the order appointing him, to collect and receive the assets of said firm, be construed to have no reference to apparent accounts on the books of said firm, against the members of said firm, parties to said suit on the firm books at the time of his appointment as receiver, but that such sums appearing by said charges on the firm books against said parties to have been drawn and received by them, be permitted and directed to remain in their hands respectively till the final determination of this cause and the further order of this court."

This order was appealed from, and the appeal is now before us.

The first question is whether the order is appealable. Under the statute an appeal can only be taken from a decree or final order. Comp. L., § 5179. In its terms this order is interlocutory, but it has been several times held by this court that if an order finally disposes of any portion of the subject matter in controversy, it is quoad hoc a final decree or order, and therefore appealable. An order appointing a receiver has therefore been held appealable when it took from a party a possession to which he was entitled of right. Lewis v. Campau, 14 Mich. 458; Barry v. Briggs, 22 Mich. 201; Port Huron etc. R.W. Co. v. Jones 33 Mich. 303; McCombs v. Merryhew, ante, p. 721. It is not the stage of the case in which the order is made that determines its appealability, but, as was held in all the cases cited, its effect upon the rights of the parties; and that must be the test of the finality of this order.

As has been stated, the order in terms is not final. It directs certain payments to be made to the parties respectively, but the same are to be allowed and accounted for on the final settlement. Now if it were absolutely certain that a final accounting would restore from a party who had been overpaid the amount of such overpayment, it might be...