42 So. 454 | Ala. | 1906
— The original bill Airas filed on the 10th of June, 1895, by Anna R. McGrath and Emma Gordon, against Louis Stein, Fred Stein, Ella Davenport, Eli she M. Fulton, and Walter Wood. The bill had for its object and purpose the dissolution of the partnership business and accounts between the persons associated together under the firm or copartnership name of the “Mobile City Waterworks,” and for a sale of the property belonging to and standing in the name of said partnership, the Mobile City Waterworks, or in the name of Albert Stein, as trustee for said partnership, for distribution among the partners. The defendant Wood, in
The bill as amended was amended to meet the demurrer on the 4th day of January, 1898. On July 31, 1899, a decree was rendered sustaining the equities of the bill and ordering a reference to ascertain the status of Louis Stein’s accounts, in the event he failed to file his account within a fixed time. An appeal was prosecuted from this decree on the 16th day of August, 1899, to this court, and on the 20th day of November, 1900, the decree of the chancery court was affirmed.—Stein v. McGrath, 128 Ala. 175, 30 South. 792. The decree of the chancellor for an account is in the following words: “It is further ordered, adjudged, and decreed that the respondent Louis Stein be, and he is hereby, ordered to deliver to the register, upon his demand, all the property, books, and ac
The certificate of affirmance'was not issued until June 29, 1901. On the 8th clay of July, 1901, a demand was made by the register on Louis Stein for all the property, books and accounts belonging to the waterworks property described in the bill. On the 17th day of August, 1901, Louis Stein delivered the books to the register, accompanied by an affidavit, made by him before the register, that one of the books, labeled “A,” contained a true and correct account of all moneys received-and disbursed by him for said waterworks from the time he took charge to the date of the affidavit. The delivery of the books was also accompanied by an affidavit made by one Gimen, wlio was the bookkeeper for the waterworks. The register did not regard the delivery of the books and the affidavits as a compliance with rule 91 of chancery court practice respecting the manner of bringing in accounts before the register; and in his report he states that he was unable to make up an account from the books delivered, which statement is based on facts stated in the report, but none of which we think apply to the book marked “Exhibit A.” It was not in any box, as were all the other books, but was delivered to the register separate and apart from the boxes. Upon the face of this particular book it cannot be doubted that it purports to set out all the receipts and disbursements of the waterworks'during the time of Louis Stein’s administration of the affairs of the concern. But, from the view we shall take of the case, it is unimportant whether the delivery of Exhibit A, with the affidavit accompanying it, was, or not, substantial compliance Avith the rule of chancery practice referred to.
The register’s report shows that after giving notice to the respective parties he began on the 19th day of April, 1902, to hold a reference for the purpose of stating the account of the respondent Louis Stein, and completed the reference the 6th day of June, 1902. The report was
The statute (section 741 of the Code of 1896) provides: “Whenever a reference is made to the register, the party at whose instance, as for whose benefit, the reference is made must cause such matter to he presented to the register within the time limited for the hearing, and if no time is limited, within three months after the reference is made.” Under the facts of this case and the requirements of the statute, the duty clearly devolved on the complainant to have the decretal order of reference executed hy January 1, 1904, and, not having done so, it was within the discretion of the chancellor to dismiss the hill and adjudge, the cost, as was done in the decree.— Smith v. Smith, 132 Ala. 138, 31 South. 359.
The appeal now’- before us is prosecuted by the complainant, Mrs. McGrath, from the final decree of July 6, 1904, which appears to he one dismissing the cause for the Avant of prosecution. It is insisted, hoAveA>-er, that the chancellor erred in sustaining the exceptions to the register’s report and ordering a new reference to he held. Without conceding that, if the chancellor’s ruling-in this respect was erroneous, that would excuse the complainant from having a new reference executed, we will proceed to examine the correctness of that ruling. And in this respect Ave think that the only question for determination is, did the register err- in excluding from
Appellant’s counsel asserts in the brief that the register did not exclude the book lábeled “A.” In this we are of the opinion that counsel is mistaken. • Motion was specifically made by counsel for cross-complainant Walter Wood to strike from the evidence Exhibit A, so far as the same purported to- show the aggregate credit for expenditures made by Stein. This motion was adopted and insisted upon by counsel for the complainant (appellant) Mrs. McGrath. The report of the register with respect to the matter is as follows: “The motion filed by Walter Wood to strike from the testimony Exhibit A is well taken and should be sustained. This motion is in writing and is hereto attached.” From this and the entire proceedings had before the register we are unable to come to any other conclusion than that he disregarded the book, at least so far as the credit or disbursement side of it is concerned.
Without dispute the parties, complainants and respondents, sustained the relation of tenants in common to each other; and without any conflict in the evidence Louis Stein, one of the tenants in common, was in active control and management of the common property from the death of his father, Albert Stein, in 1874, until the 15th day of May, 1898, when he delivered the possession and control to the city of Mobile. It is further shown, without any conflict in the evidence that the system of bookkeeping, of which Exhibit A formed a part, was peculiar to the waterworks company, and was established by Albert Stein while in the management of it. It further appears that, while Book A in part was made up from entries in other books, it was the book from which all the annual statements of receipts and disbursements were made; that these statements, when made out, were forwarded to the respective owners of the property,
But there is a still stronger reason for upholding the decree of the chancellor in respect to this matter. The bill charges that Louis Stein is in possession of all the property of the AvaterAvorks, and prays that a proper person be appointed to demand and recede all property, books, and accounts Avliich may belong to said water-Avorks, an accounting by Louis Stein is prayed for, and the decree directed that, on demand made by the register, Louis Stein should deliver to him all the books and accounts that belonged to the waterworks. The demand was made, and in response Exhibit A Avas delivered by Stein to the register. Furthermore, Ave have seen that the decree directed the register, in the event Stein failed to file his account to state an account from the books of the AvaterAvorks and from other evidence as might be produced before him. It cannot be doubted that the bill in its prayer required the delivery of the books, and Avhether for the purpose of making them the basis of stating an ccount or not makes no difference, as the decree directed that they should be used for that purpose. And on the appeal from the decree by Stein no cross-error was assigned by
It follows that we have found no error in the chancellor’s decree, and it must be affirmed.
Affirmed.