Kinney v. Robinson

CAMPBELL/ C. J. In this case the balance found due complainants was based chiefly on an allowance in their favor-of all the losses upon the assets which went into their hands. I do not think they are entitled to any such allowance. On the dissolution of the firm they had no exclusive right in the assets, and, if they chose to bring the concern into chancery, it was also their duty to see, as far as possible, that the proceedings be fairly carried through. By the order obtained in [114] April, 1873, tbev got possession oí the assets without complying with the conditions of the order, and their possession was such that any unauthorized disposal would be at their own peril. I do not thins it is satisfactorily shown that Eobinson ever authorized them to make such disposition as they did make. Neither do I think that their private books can be allowed any force in the controversy. It was their duty to keep these matters in shape to be readily investigated by the court, and to act diligently. There never was any obstacle to the transfer of the cause to another circuit, if the judge was incompetent to sit, or to apply after such transfer, or before it, if another judge should be called in, for any new order necessary. They saw fit to go on without any regard to the order under which they got the property, and without paying any heed to defendant’s interests. I think they are now precluded from relying on their irregular and unauthorized conduct. I can see no foundation for any decree in their favor. T|iere may be some difficulty in giving affirmative relief to Eobinson, and we are not prepared to do so; but I do not think complainants should have any recovery against him. The decree should be reversed and bill dismissed, with costs against complainants. This seems to us as near complete justice as it is possible to come on the facts. ChaitpliN and Morse, JJ., concurred.