The plaintiff sued for a settlement of a partnership and sequestered the partnership assets. The defendant furnished bond and regained possession of the property, and undertook to dispose of it and pay the debts. Answering the suit, he denied that there was a partnership.
During the trial of the case, the judge concluded that there was a partnership, and that it was dissolved on the 24th of December, 1925. He therefore stopped the trial and appointed an accountant to audit the books and make a report showing the relative rights of the parties.
The report showed that, charging the *Page 12 defendant with all of the assets of the partnership, which he had taken possession of, and giving him credit for the partnership debts which he had paid, he owed the plaintiff $987.81, and that there was a so-called suspense account of $137.42, which the auditor thought should be divided equally; so that the defendant owed the plaintiff $1,056.52. The plaintiff testified and convinced the judge that there was a further item of $500 due him, and, accordingly, the judge rendered judgment in his favor for $1,556.52. Thereafter, on application for rehearing, the defendant convinced the judge that he had refunded the item of $500 three days after the dissolution of the partnership. The judge therefore granted a new trial, and reduced the amount of the judgment to $1,306.52. It is from that judgment that the defendant has appealed.
It appears from the auditor's report, and seems quite plain, that the judge should have deducted the whole $500, instead of $250, from the amount of the judgment which he first rendered, $1,556.52, and should have given judgment for the $1,056.52 shown to be due by the auditor's report. Inasmuch as the court was in error in adding the $500 to the amount shown to be due the plaintiff by the auditor's report, the way to correct the error was to deduct the whole $500, not half of it. The judgment appealed from, therefore, should be reduced to $1,056.52.
We adhere to our original opinion that the partnership should be taxed for the costs of this suit, including the auditor's fee of $250; which means that each party shall pay half of the costs.
We have concluded also that the plaintiff is not entitled to interest from judicial demand, but only from the date of the final liquidation and settlement of the partnership, which was on the 2d of June, 1927, when the civil district court rendered its judgment.
The judgment appealed from is reduced to *Page 13 $1,056.52, which shall bear legal interest from the 2d of June, 1927; and, as amended, the judgment is affirmed. Each party is to pay half of all court costs, including the auditor's fee of $250.
THOMPSON, J., dissents.