Ballard v. Callison , 4 W. Va. 326 ( 1870 )

Berkshire, J.

The only decree or order that could be appealed from in this case, is the order granting the injunction, and the order overruling the motion to dissolve the same.

The motion to dissolve was made and overruled before the answer of the appellant Ballard was filed, consequently the allegations of the bill were to be taken as true, when the motion was made and overruled. Peatrass vs. McLaughlin, 6 Grat., 64; McClelland vs. Kincaid, Idem, 352. The question we are to consider, therefore, is, whether the bill on its face showed sufficient matter to justify the awarding of the injunction.

There can be no question, I think, that the legal effect of the sale by Humphreys to Callison was, ipso facto, to dissolve the partnership previously existing between Humphreys and the appellant Ballard, in the press, fixtures, &c. in controversy. This, as I understand, was conceded in the argument. But it was earnestly maintained on behalf of Ballard, that upon the destruction of the partnership thus wrought by the sale to Callison, the whole of the business and partnership effects devolved on him as surviving partner, the same as in the ease of a dissolution of a partnership by the death of one or more of the partners; and that consequently he had the right, as such surviving partner, to the control and custody of the partnership effects, and to proceed to settle and close the business of the late firm, without interference or hindrance on the part of Callison; and further, that the circuit court had no power or jurisdiction in the premises, to restrain him from doing so.

I do not think, however, that the authorities sustain him in this position; and I am of opinion, that taking the allegations of the bill as true, a proper case is shown for the jurisdiction and interference of a court of equity, and such a one as justified the restraining order complained of Walbert vs. Harris et al., 3 N. J. Chy. R., (Halsted), 605; Martin vs. Van Schaick et al., 4 Paige’s Chy. Rep., 479; Parsons on Part., 313, 314, 315, and note 16.

The other orders and decrees complained of, being strictly interlocutory, and not such as an appeal would lie from, it is unnecessary to notice them.

I am of opinion, therefore, that the decree should be affirmed, with costs and damages.

The other judges concurred.

Decree aeeirmed.