Hill v. Hill

100 So. 340 | Ala. | 1924

Under the uniform decisions of this court, the decree of April 8, 1921 — in which the trial judge stated that he was of the opinion that no partnership existed between the parties, but that they were engaged in a joint adventure — was not a final decree as to the relation of the parties. Thompson v. Maddux, 105 Ala. 326, 16 So. 885; Randall v. Hardy, 107 Ala. 476,19 So. 971; Vice v. Littlejohn, 109 Ala. 294, 19 So. 386; Richardson v. Peagler, 111 Ala. 479, 20 So. 434; Trump v. McDonnell, 112 Ala. 256, 20 So. 524; Gentry v. Lawley,142 Ala. 333, 37 So. 829; Threadgill v. Dixie, etc., Co.,202 Ala. 309, 80 So. 391; Bell v. King, 210 Ala. 557,98 So. 796. These cases hold that the mere expression in a decree of the judge's opinion as to the merits of the case, not followed by an order or decree that the complainant is entitled to relief, or adjudicating the fact referred to, does not constitute a final decree upon the matter, and will not support an appeal.

This was quite plainly the view entertained by this court on the second appeal, when, in reversing the decree granting relief to complainant, it was expressly stated that the entire cause would be left open for such decisions and decrees as the chancellor might deem proper.

It follows that the decree of March 27, 1923, ordering a hearing on the question of the existence of a partnership or a joint adventure, vel non, on testimony to be taken orally before the court, was within the power and discretion of the court, and not subject to the exception taken thereto.

The case of Burgin v. Sugg, 210 Ala. 142, 97 So. 216, referred to by counsel for appellant, is not in point, since the decree there held to be a final decree settling the equities was in fact a decree and not the expression of an opinion merely.

Our consideration of the testimony before the court does not lead us to the conclusion that the finding of the court was erroneous, and we will not disturb it, especially in view of the trial judge's superior advantages in determining the credibility and weight of the conflicting testimony — a factor of the highest importance in a controversy of this character.

It may very well be — and some features of the evidence show it — that the father allowed his son, O. C. Hill, to act and to appear as his partner, and that outsiders thought they were partners. If that were the question at issue, there could be but little argument as to the proper finding. But all of that may be true — and such conduct is perhaps not unusual under similar conditions — and yet be consistent with the absence of any contractual relation, express or implied, which would create an actual partnership, with its mutual rights and obligations, between the parties.

On the cross-examination of respondent, counsel asked him if his expulsion of complainant from participation in the business was not due to resentment caused by complainant's rebuke of, and protest against, respondent's conduct with a woman, which complainant declared to him would ruin the business and lose the respect of people in the community. We think this question was improper, and amounted to no more than a self-serving declaration by complainant of matters wholly irrelevant to the issue, which was the existence, vel non, of a partnership. But even if the question had been allowed, and had been answered affirmatively, the fact, we conceive, could and would have had no weight, and certainly would not have affected the decision and decree of the court on the issue presented.

We find no ground for a reversal of the decree, and it will be affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.