Edmond Doyle v. Erna Polle

This is an action of assumpsit in the common counts with specifications seeking to recover only for goods and chattels furnished the defendant. The defendant pleaded a general denial, and also filed an answer in set-off claiming the sum of $2,000, as due the defendant "to balance book accounts between them." On September 12, 1958 the defendant filed a motion to remove the action from the jury trial list, and that judgment to account be made, pursuant to v. S. 47, § § 1657-8-9, now 12 v. S. A. (Set-Off) § § 5473, 5474 and 5475. Acting on this motion an entry was made by the court, * * "defendant ordered to recognize, and so recognized judgment to account; case to be heard on book account." A referee was appointed to hear and determine the facts and his report as filed reflected that the sum of $509.08 was owing by the defendant to the plaintiff. After the findings of fact were filed by the referee the defendant filed a motion to dismiss the action, in substance stating: (a) that a partnership existed; (b) that no action of law may lie between partners covering partnership affairs unless and until a settlement or accounting has been had between them; and (c) that the court was without jurisdiction to hear the matter unless and until an accounting was had between the parties. This motion was denied by the court, following which the defendant also filed a motion for a discontinuance of her action in set-off which was also denied. A judgment order was then made and filed by the court ratifying and affirming the findings of fact of the referee and therein ordering the defendant to pay to the plaintiff the sum of $610.92 together with interest. The case is here on exceptions to the denial of defendants motions, and to the judgment order.