Mocquot v. Meadows

JUDGE GUFFY delivered the opinion op the court. This action was instituted in the city court of Fulton by the appellee against the appellant. The petition alleged, in substance, that the parties had entered into partnership for the purpose of buying and shipping cotton, through the season of 1891, each to share alike in profits and losses, and that after the business was completed the parties made a settlement of their partnership affairs, and that it was found that the losses were $892.02, which appellee has paid, which sum appellant agreed was the true amount of loss, and asked judgment against appellant for $446.01. Appellant by his answer denied that he was to share any losses, also denied the settlement, as well as his liability for any sum, and, in substance, averred that appellee was to furnish the money, and appellant to give his time and attention to the business, and receive half the profits, if any, but to bear no loss, and that he had not received anything [546] for his services. To this answer appellee replied traversing the material allegations thereof. A trial resulted in a judgment in favor of appellee, from which judgment appellant appealed to the circuit court of Fulton county, and upon the calling of the cause for trial, the appellant moved to transfer the same to the equity docket, which motion was overruled by the court, and proper exceptions taken. A jury was waived, and the law and facts submited to the court, and a separate finding as to the law and facts rendered. The court gave judgment in favor of appellee for $446.01. Appellant’s motion for new trial having been overruled, he prosecutes this appeal. Several grounds for new trial are relied on,.some of which need not be noticed. During the trial appellant offered to prove by appellee that he, appellee, was the owner of a large dry-goods store, and that he paid for much of the cotton at his store, realizing a large profit thereon, to which appellee objected, and the court sustained the objection; also offered to prove by appellee what amount of cotton was paidi for in goods out of his store, which proof was objected to by plaintiff and objection sustained; also sought to prove that appellee owned two-thirds of the cotton gin used by them, which, in like manner, was objected to, and objection sustained. Appellant also insists that the court erred in not allowing his deposition to be read as evidence. It seems to us that the evidence offeredl by appellant should have been admitted, and this being an equitable action, he should have been allowed to read his deposition, which had theretofore been taken. Appellant also insists that the court erred in overruling his motion to transfer the case to equity. This action was [547] brought in equity in the city court, as the petition shows, and is manifestly an action for the settlement of a partnership, be it a general or special one, and all such actions are of exclusively equitable cognizance, unless sec. 726 of the Civil Code of Practice requires appeals in equitable actions from inferior courts to be treated, in all respects, as ordinary actions. Appellee's contention is that such is the effect of that section. The section, supra, is in the following words: “Appeals shall be docketed and stand for trial as ordinary actions, and shall be tried anew, as if no judgment had been rendered.” We are not aware that this section has ever before been considered by this court. It seems to us that the object or intention of the section was to provide a rule to govern the clerk in «Jocketing appeals from inferior courts, and not to change the law as to the trial. If this action had been instituted in the circuit court, and from any cause had been placed on the ordinary docket, it would, upon motion, have been transferred to the equity docket, and inasmuch as the law required this action to be tried anew, as if no judgment had been rendered, it seems to us that the motion to transfer should have been sustained. There will have to be a new trial of this cause, hence we refrain from any discussion of the evidence or judgment rendered. For the errors indicated, the judgment of the court below is reversed and cause remanded, with directions to set aside the judgment, award a new trial, and to sustain the motion to transfer to the equity docket, and for further proceedings consistent with this opinion.