M'Gowan & Collins v. Collins, 10 N.C. 420, 3 Hawks 420 (1824)

Dec. 1824 · Supreme Court of North Carolina

10 N.C. 420, 3 Hawks 420

M'Gowan and Collins et al. v. Collins.

IN EQUITY.

") v From Halifax. J

When on a bill filed to settle partnership accounts, the matters in dis* pute were referred to arbitrators who made a report that defendant was in debt to complainants, provided defendant was not liable to pay the amount claimed in an attachment against him for a debt due from the firm, and the Court, on complainant’s motion, decreed in the alternative, pursuing the language of the report of the referees; it was held, that the decree was as final as the Coart intended to make it, the parties being referred to the decision of another Court for its final consummation, and that a bill of review would lie to reverse the decree. 4

The bill which was filed in April, 1820, set forth that M‘ Gowen and Owen Collins, copartners, entered into partnership with John Collins of Halifax, the defendant, in 1818, under the firm of John Collins Sf Co.; that it carried on a profitable business for two years, and that during the copartnership complainants furnished goods to a large amount; that the affairs of the firm became deranged by reason of debts against it to a large amount, and in order to make a just surrender of all the effects, the company assigned to Timothy Ryan, Patrick Durkin and George Irvine, in trust for the benefit of its creditors; that Ryan, Durkin and Irvine pray to be made parties to this bill; that a dissolution of the firm of John Collins <§* Co. took place, and that John Collins fraudulently carried off bonds, accounts, &c. of the partnership effects, and refused to account with the assignees, and prayed an account and decree for the sum due.

At October term, 1821, the cause was referred to Andrew Joyner and Shirley Tisdale; and at April term, 1822, the referees reported that the defendant had in his hands g 1293 03 due complainants, «provided John Collins is not liable under an attachment issued at the instance of Michael Sweetman against him, for payment of an execution in favour of the said Sweetman against o M ‘ Go wan Collins for the sum of-.”

On the 27th of April, 1822, upon motion made to the Court below, by the complainant’s solicitor, and upon producing the report of the referees, it was “ ordered that the report be confirmed, and that John Collins pay to the complainants the sum of g 1293 03, provided that John Collins is not liable under an attachment issued at the instance of Michael Sweetman against him, as mentioned in the aforesaid report; and if he, being liable, should pay to Sweetman the amount of the attachment, then he was to be discharged from the payment of g 1293 03 to complainants, if Sweetman’s attachment amounted to that sum; and if it did not, then that John Collins should pay to the complainants the sum required to make up the g 1293 03;” and the clerk was ordered to tax complainant’s costs against John Collins.

At October term, 1822, the cause was continued, and at April term, 1823, the complainants filed a petition for a rehearing; which at October term, 1824, was refused, and the petition was dismissed; whereupon complainants appealed to this Court.

The reference was of all matters in controversy between M ‘ Go wan <$• Collins and John Collins.

The attachment of Sweetman was sued out in May .term, 1822.

The Attorney General, Seawell and Jhvffin, for com-complainants.

Gaston and Hogg, for defendant.

For the complainants it was urged, that by the report of the referees a question of law was submitted for the determination of the Court, viz. whether John Collins was liable to Sweetman’s attachment; the Court below did not determine it, but in its decree simply followed the language of the report.

.For the defendant three grounds were taken,

1. That this Court had no jurisdiction, the decree not being final. The petition to rehear is founded on this fact; for had there been a final decree, a bill of review would have been necessary: it is, in fact, an appeal from a refusal of the Court to reconsider an interlocutory order. -

2. That it was a decretal order entered at complainant’s request and by his consent; he cannot now be heard to set it aside. Morgan v. Mather, (2 Ves. J. 14. 21.) King v. ■ Wightman, (1 Jlnstruther 80.)

8. The award made was fully within the power confided to the referees, and there is no allegation made of fraud or corruption. (1 Harrison Ch. 127, 8.) If it were intended in the report to leave John Collins’s liability to Stueetman’s attachment as matter of law to the Court, would not the facts connected with the attachment have-been embodied in the report?

Complainants in reply. — It is not intended to attack the award made by the referees on the ground of fraud or corruption; but the decree is imperfect, for it is conditional, following the language of the award. Now the Court could not make such a conditional decree.

It may also be said to be final, and costs, the last subject matter of a chancery decree, are provided for. At all events, the petition to rehear is the matter before the Court, and the refusal to rehear was a final decision of that point.

As to the consent of the complainant, the rule is, that where parties of themselves choose ”to carve out their course, as where a complainant dismisses his bill, the Court will not afterwards interfere, for it has done n» act itself and interferes only with its own acts.

Hare, Judge.

I think the decree in this case is ag final as the Court intended to make it. The parties are refei’red to the decision of another Court for its final consummation; and whether execution should issue for one .sum or another, was made to depend upon that decision; and when the record from the Court where the attachment was depending“(under which John Collins had been summoned as garnishee) should be produced, it would make no alteration in the decree, but merely enable the Court to direct for what sum execution should issue. I therefore think a bill of review will lie to reverse the decree, and that the decree ought to be reversed, and a decree-entered for the complainants.

Tayzor, Chief Justice, and Henderson, Judge, concurred.