Wyatt v. Sweet
| Decision Date | 14 June 1882 |
| Citation | 48 Mich. 539,12 N.W. 692 |
| Court | Michigan Supreme Court |
| Parties | WYATT v. SWEET. |
Where one of two persons engaged in a joint enterprise in the nature of a partnership files his bill for a mutual accounting and the other answers and submits himself to the doctrine applicable to the class of cases in which he is impleaded, the parties have become litigants under the particular head of jurisdiction appealed to.
After a consent order has been entered for a mutual accounting before a commissioner the defendant has acquired rights and the complainant cannot, by a common order, dismiss his bill and cut off the accounting.
If an order entered by complainant dismissing his bill is operative, he cannot be affected by subsequent irregularities in practice disregarding it.
Where a proceeding is had for a mutual accounting and a balance is found due from complainant a cross-bill is not necessary to authorize the court to order payment.
Appeal from Kent.
Taggert & Wolcott, for complainant.
Norris & Uhl, for defendant and appellant.
A particular discussion of this case would be a waste of time. The citations made by defendant's counsel cover every question and are conclusive. The court below erred in refusing to decree payment to defendant of the balance found to be his due. The parties had carried on a joint enterprise in the nature of a partnership and complainant filed his bill for a mutual accounting according to the course and practice of the court. The defendant answered and submitted himself to the doctrine applicable to the class of cases in which he was impleaded. The parties were hence litigants under the head of jurisdiction where each is considered as an actor. After considerable evidence had been taken and all necessary preliminary information had been obtained and on the third of March, 1880, an interlocutory decretal order that the parties mutually account before a commissioner was regularly framed and entered by consent. It provided among other things that he should make all just allowances and report such balance as he should find to be due from either to the other. Both parties proceeded at much length under the order but it finally appearing probable that the result would be adverse to the complainant he entered a common order purporting to dismiss the bill and frustrate the foreshadowed result. This was in September, 1880.
The defendant correctly assuming that the case being for a mutual accounting, a right had accrued to him, and especially after the consent order and the action taken under it which could not be cut off by this summary expedient of a common order and he accordingly disregarded the attempt and went on with the reference. And on the thirty-first of December afterwards the commissioner made his report by which he found due to the defendant at that date the sum of $3,750.56. On the eighteenth of the...
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