Breedlove v. J. W. & E. M. BreedLove Excavating Co.

GOULD, J. pro tem.

Defendants appeal from two pendente lite orders. One, granted March 24, 1941, restrained and enjoined them pending the trial from disposing of any money or property received in connection with certain operations of the business of defendant copartnership, excepting only the payment of the ordinary expenses thereof, and required that the moneys coming into the possession of defendants from the conduct of their business be placed in a named depositary. The other order, made May 22, 1941, appointed a receiver to take charge of certain books and moneys of defendants and otherwise to conduct certain of its partnership functions. A bond of $20,000 as fixed by the lower court stayed the operation of-this latter order pending appeal therefrom.

The litigation as initiated by plaintiff Phil Breedlove against his brother J. W. Breedlove and the latter’s wife E. M. Breedlove, both as a copartnership and individually, seeks an accounting of the transactions and dealings of plaintiff with defendants since February 26, 1938, in connection with various contracting and excavating jobs involving large sums of money. By his verified complaint plaintiff alleged that by agreement with his defendant brother he was to have an equal interest in the profits of these ventures, and affidavits from other persons were submitted to the effect that defendants had acknowledged the existence of such partnership relation.

On the other hand, defendants vigorously disputed all such claims as made by plaintiff and asserted that plaintiff, instead of sustaining the relation of partner, was simply an employee hired at a stipulated salary. These claims were set forth by numerous affidavits, and writings were submitted by both sides in support of their opposing contentions.

In this situation the trial court, after hearings duly had and after consideration of the pleadings and affidavits, granted the motions for appointment of a receiver and for the temporary injunction, from which orders the defendants prosecute this appeal. Inasmuch, however, as trial of the cause itself was in progress from October 22, 1941, to January 29, 1942, the within appeal was held in abeyance, in view of the fact that a judgment'after trial would automatically

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terminate the pendente lite orders. But due to the death óf the trial judge before decision was rendered the lengthy hearing ended in a mistrial, and defendants thereupon urged decision on this appeal.