Boyce v. Burchard

By the Court. Benning, J. delivering the opinion. The complainant gave the defendant notice, that he would on a certain day, .move for an injunction and the appointment of a receiver. On that day, the Judge took up the motion, granted the injunction, and as to the appointment of a receiver, passed an order that “ the motion for the appointment of a receiver be suspended for a reasonable time, to allow an opportunity to the defendant to make answer, and show why it should not be granted.” The defendant answered the bill. Afterwards the motion was renewed by the complainant, and the Judge again took it up, and in doing so, he gave the defendant the right to open and conclude the argument of the motion: Was that proper? The answer to this question depends on the import of the order aforesaid, suspending the motion. If the import of that order was, that a receiver would be appointed unless the defendant should show cause by answer, why one should not be appointed, then the Judge was right in giving the opening and conclusion, to the defendant. The party called on to show cause, is the party entitled to open and conclude. The order is such, that it is certainly well susceptible of this import. And this doubtless is the import imputed to it by the Judge, as he gave the opening and conclusion to the defendant. And certainly, this Court ought not to disturb the interpretation of an order, put upon the order by the Judge who made the order, if that interpretation be one of which, the order is well susceptible. This Court, therefore, cannot say that the Judge erred in [78] giving the opening and conclusion of the argument, to_lhe defendant. [1.] Nor can this Court say that the Judge was wrong in refusing to hear the oral evidence and certain of the affidavits. There must be a point at which aliunde supports to bill or answer must cease to be receivable. And this Court sees in this case nothing going to show, that the point selected by the Court below, was not as good a one as any other. Let the war of affidavits be ordered as it may, one party or the other has to be deprived of the last fire. The plaintiff in error complains that the Judge decided the motion against him, without hearing the argument of his counsel on the motion. The Judge, “supposed the case had been fully argued.” But even if the plaintiff in error were right in the fact, what can this Court do for him? Can this Court make the Judge listen to an argument ? And, suppose that the Judge decided right without hearing argument, is the decision not to stand? or, that ho decides wrong, will not a reversal by this Court be all that could be required? Must there be a reversal and an argument too, before the Judge? [2.] This brings mo to the main question, and that is, whether the Judge was right in refusing to appoint a receiver. Was the case one to call for a receiver ? The case, as stated by the bill, was made up of many particulars. Some of those were supported by the affidavits of third persons ; many of the particulars were denied by the answer. On a consideration of the bill, affidavits and answer, we think that the following particulars may be regarded at least,prima, facie, as true. 1st. .On the first of January, 1855, a partnership commenced between Boyce, Burchard and Ward. In the course of that year, Boyce put into the partnership, between $18,000 and $20,000, as his part of the stock. In February 1856, [79] Ward died; and soon afterwards, a new partnership was formed by and between the surviving partners, Burchard and. Boyce. In this partnership, Boyce put in $10,000 worth of stock, consisting in what had, in part, constituted his stock in the old partnership. Boyce had no participation in the management of either partnership ; the first having been managed exclusively by Burchard and Ward, the last exclusively by Burchard. It does not appear that Boyce ever drew anything as stock out of the first partnership, except what he put into the second partnership, as his stock in that partnership. In August, 1856, the bill was filed. At this time the partnership had become insolvent, that'is to say, the partnership under Burchard’s management, had become insolvent in a trifle over six months. 2d. Burchard is insolvent. 3d. Boyce is solvent. 4th. Burchard, from time to time, during the existence of the two partnerships, paid two and a half per cent for accommodation endorsements for the partnerships, to such an extent, that the whole amount paid out by him reached at least as much as four or five hundred dollars. 5th. In May, 1856, Burchard made in the cash book of the firm, this entry — “ Lent$500” ; and about the 1st of June, 1858, told the book-lcceper, that the $500 had been returned, but refused to let the book-keeper make an entry to that effect. Yet, in Ilia absence of such an entry, the cash was minus, instead of being plus by $500. 6th. All friendship or confidence between the partners is irretrievably gone, and Boyce has, since the filing of his bill, excluded Burchard from participation in the possession of the partnership effects. Nov/ we think that out of these particulars is made a case for a dissolution and a receiver. See. 3. Dan’l. Ch. Pr. 418, 419, 420, and cases there cited. If Burchard would acquiesce in a dissolution, and in the exclusive possession and management of the partnership' [80] effects by Boyce, then of course, there would be no cause for a receiver; but this he will not do. This being so, it is manifest, that notwithstanding the illegal conduct of Boyce, nothing but a receiver will meet the wants of the case. In no other way is it practicable for the affairs of the concern to be quietly, peaceably, and speedily wound up. And of all ends this is the one, that the rights and interests of both partners, and of the creditors, most demand. We think, therefore, as the case stood, the Judge should have appointed a receiver. Judgment reversed.