3 Rob. 48 | La. | 1842
The defendant is appellant from a judgment ordering the sale, at public auction, of a plantation and slaves belonging to the partnership heretofore existing between himself and John F. Miller, whose syndics have instituted the present action with a view to obtain a partition and settlement thereof.
The pleadings show that after this suit was put at issue, an order was rendered by the inferior court, appointing a notary to make an inventory of all the property in partnership, and referring the settlement of all the accounts set up by the partners against each other, and againgt the partnership, to three auditors. This
After the evidence was closed, the plaintiffs’ counsel' moved the court to order an immediate sale of all the partnership property to be made at public auction, in order to effect a partition thereof, to which motion the defendant’s counsel objected, on the ground that there were long and intricate accounts unsettled between the parties, which accounts had been referred to auditors, who had not yet reported thereon, and that a sale could not be legally ordered until the accounts should have been settled and liquidated, and the balance between the parties ascertained. These objections were overruled by the judge a quo, who sustained the plaintiffs’ motion, and ordered the. sale accordingly. To this opinion, the defendant’s counsel excepted, and from the interlocutory judgment rendered thereon, he took the present appeal.
The first question to be decided in this case, grows out of the defendant’s bills of exception. It is whether the inferior court could properly and legally rescind the order appointing experts, and permit the plaintiffs to introduce evidence to prove the facts sought to be established by the report of the experts ; or, in other words, whether the report of the experts, legally made, was not the only proper evidence of the fact intended to be proven in this case.
But it is contended that, in this case, the experts were appointed by consent of parties ; that such consent cannot be withdrawn ; and that their report was, consequently, to be used as the only proper and legal evidence of the facts sought to be established. It is true that the order in question was rendered by consent, and that two of the experts had acted and made a report agreeing with the evidence which was subsequently introduced by the plaintiff's. The order appointing experts was rescinded by the court on the motion of the plaintiffs, who, thereby, withdrew the consent they had previously given. It is a well known and established rule that where one of the parties to a suit gives a consent or makes an admission bn record in the course of the suit, from which certain legal rights may be derived in favor of his adversary, he cannot subsequently withdraw such consent or admission ; and that the other party is entitled to the benefit of their full and legal effect. In this case, we are at a loss to conceive how the defendant could be said to have acquired any legal right from the consent of the plaintiffs to the appointment of experts for the purpose of proving
The main point, however, which this case presents, and which has been ingeniously and strenuously urged by the defendant’s counsel, is, that no sale of the common property could be ordered, before the accounts between the parties against each other and against the firm were settled and liquidated. We have attentively considered this question, and have found no difficulty in coming to a conclusion adverse to the appellant’s pretensions. The object of this suit is a settlement and partition , of the partnership formerly existing between the parties. In order to arrive at a final liquidation of it, it is necessary, since the property cannot be divided in kind, that the whole of it should be converted into money, not only to satisfy the debts, but also to divide the proceeds of the sale between the partners, according to their rights against the firm, and to the portions to which they may be entitled respectively. Iiow could a fair settlement and final liquidation be made, if the amount of the assets or credits of the partnership are left unknown ? These are mainly, to be taken into consideration by the auditors or by the notary ; and it would be vain to say that there should be a provisional settlement made before selling ; that the sale should be delayed until the balance duetto, or by each of the partners should be ascertained; and that a final liquidation should take place subsequently. No one can be compelled to hold property with another (Civ. Code, art. 1215); and it would often happen that, by the delay which the settlement of the accounts of the partners would necessarily occasion, this rule of law would
We think, therefore, that the judge a quo did not err in ordering the saje .of the common property in. this case; and that, as directed in the judgment appealed from, the proceeds thereof should n.ot be divided between the parties, until a final settlement and liquidation of their accounts be made, and their portions ascertained by a partition made under the control of the inferior court,
Judgment affirmed.