Norton v. Sperry ( 1911 )

Brown, J.

This action was brought for the dissolution of a copartnership alleged to have theretofore existed between the parties, for an accounting and settlement of the firm transactions, and for the appoint-, ment of a receiver to take charge of and wind up its affairs. The cause came on for trial of the issues presented before the court without a jury. The court found that a copartnership existed between the parties as alleged in the complaint, with the facts necessary to vest in the court authority to - decree a dissolution thereof and the appointment of a receiver to wind np the affairs of the firm. An order was accordingly made appointing a receiver, with directions to take an account of the partnership transactions and report the same, together with such information as would enable the court to close the accounts justly between the parties. Defendant then moved the court for additional findings, and for a modification of those made, and for a new trial. Both motions were denied, and defendant appealed.

The copartnership was formed in October, 1905, and defendant sought by his motion for additional findings to have the court find as a fact that an accounting and settlement was had between the parties on January 22, 1908, of all partnership affairs up, to that date. He sought by the proposed modified findings to have determined the fact, claimed by him, that certain transactions in real estate did not concern the copartnership. The motion was properly denied.. The subject-matter of the proposed findings was in no way involved in the action at the time of the, trial, nor essential to vest the court with jurisdiction to. appoint a receiver. The trial of the issues presented was for the purpose of determining (1) the existence of the alleged copartnership and (2) the facts necessary to vest the court with jurisdiction of the controversy. The appointment of a receiver in actions of this kind in no way affects or determines property rights. Smith, Receiverships, 24, 48. It is merely preliminary to a full and final hearing upon the merits of all questions affecting the rights of the partners and the scope and extent of the partnership affairs and the property thereof.

It follows, therefore, that defendant’s request for additional findings was properly refused. If a settlement was had between the parties in 1908, as alleged in defendant’s answer, it may be presented to the court in connection with the receiver’s report, and be heard and determined when' final judgment is ordered. The same may be said with reference to the extent and scope of the partnership business, and what transactions it included. The finding of the court that the business of the firm extended to-real estate transactions- wherever consummated is not conclusive, and will not bar the right of defendant to be heard thereon at the proper time. Baker v. Wyman, 47 Minn. 177, 49 N. W. 649.

Order affirmed.

Taggard, J., absent, took no part.