88 Ky. 628 | Ky. Ct. App. | 1889
delivered the opinion of the court.
Iii 1884 the appellant, John Dent, and Thomas P. Board formed a partnership, under the firm name of Adkisson, Dent & Co., for the purpose of carrying on a general business at Clifton Mill, Breckinridge county, Ky., such as dealing in real estate, merchandising, milling, farming and dealing in leaf tobacco. Not long-thereafter S. R. Adkisson was admitted into the firm. Some years thereafter the partnership was dissolved by the death of Thomas P. Board, and the appellant and John Dent formed a new partnership, under the firm name of Adkisson & Dent, and continued in the same business, and, as such firm, proceeded to wind up the business of the old • firm. Within about twenty months after the formation of the new firm John Dent died, and
There were several reports of commissioners filed, purporting to audit the accounts of said firm. One of them submitted the state of accounts on the basis of charging interest on the amount that came into the hands of the appellant, and allowing him interest on the sums that he had paid out, etc.; the other basis left out the matter of interest. The Chancellor selected the non-interest basis, and confirmed the report. The report upon the non-interest basis brought the heirs of John Dent out in debt to the appellant. The appellant contends that this report, after the term at which it was confirmed, was final.
The court’s commissioner, in a case like this, auditing and reporting the state of the accounts between the parties, acts clerically for the court, in order that the court, upon the final hearing, may render judgment advisedly. The court, when there are no reasons shown to the contrary, may, in advance of the final judgment, confirm the report, but this is upon the idea that as the parties interested have filed no exceptions suggesting inaccuracies, the report is probably correct. But the report possesses no elements of a judgment, and its confirmation does not impart to it the properties of a judgment. The confirmation is merely the suggestion, for the time being, that the tabulated statement as to the condition of the accounts, and the basis on which it is
'The case came on for final hearing, and the Chancellor found that as Thos. E. Board and S. R. Adkisson, having no interest in the old partnership, by reason of their having drawn out of the firm amounts sufficient to cover their respective interests, the assets of both firms belonged equally to the appellant and John Dent’s estate; that when the old firm was dissolved it was largely in debt; that the new firm executed its notes, amounting to over ten thousand dollars, to the creditors of the old firm in lieu >©f its indebtedness to them; that the new firm received credit with the old firm as having paid said sum in cash; that,.after the death of John Dent, the appellant paid off .these notes with money collected on the assets of
The appellant concedes that the double credits would be erroneous but for the fact that he was charged with the assets of the firm twice. If this be so, the result _ would be the same as one charge and one credit. However, the proof of the double charges consists in the statement of the commissioner, in his report of 1877, to the effect that as the appellant had been twice charged with 'the. assets he should be credited with the payment of these notes, but he does not intimate that the double charges were not subject to the former credit; that is, that the charge, say of twenty thousand dollars, was not subject to the former credit of ten thousand dollars, which would be equivalent to only charging him with,.
The judgment is affirmed.