
    Loomis v. McKenzie.
    1. Venue: CHANGE in vacation. Notice of an application for a ' change of venue made in vacation should be served on the opposite party.
    2- Partnership: appointment op receiver. Ill feeling and differences between partners, which are not shown to have resulted from the fault of the defendant, will not justify a summary order appointing a receiver to take possession of the property and wind up the affairs of the concern, where it does not clearly appear that the parties would suffer loss by continuing in possession of the property.
    
      Appeal from am, Order i/n Vacation of the Judge of the Qth Judicial District. ■
    
    Thursday, April 27.
    This is a proceeding in equity. The petition alleges that a partnership exists between plaintiff and defendant in the livery business, to continue during the pleasure and will of the parties, each one having contributed equally to the capital of the firm, sharing equally in the profits, and to have, upon the dissolution of the firm, equal portions of the property; that the firm owns a large amount of property which, together with the good will of the business, cannot be divided without great loss, except by a sale. The petition asks that the firm be dissolved and that a receiver be appointed with power to take possession of the property and conduct the business of the firm, etc. Upon this petition a receiver was appointed.
    By an amended or supplemental petition, it is averred that no amicable arrangement can be made by the parties for a division of the partnership property; that the firm is entirely solvent; that the property is exposed to' loss and its management attended with increasing and unnecessary expense, and that the business of' the firm and its good will are suffering serious loss. An order is prayed for directing the receiver to sell the firm property. Another amended petition avers that by the terms of the agreement of the parties creating the partnership, which is in parol, one Eobinson, who has an interest in the firm or rather with plaintiffs in the firm property and business, was to have the care and management of plaintiff’s interest; that there is bitter and irreconcilable differences and difficulties existing between Eobinson and defendant which render the continuance of the firm detrimental to the interests of the parties. Other allegations are contained in the amended petitions which need not be noticed.
    Defendant answered the petition, alleging that by the agreement of the parties the partnership was to continue for five years, and that Eobinson furnished the capital which is in the name of plaintiff and is interested in the firm. Other allegations of the answer need not be given. The defendant also moved in vacation for an order setting aside the appointment of the receiver, on the grounds that it was made without notice; that the partnership was to continue for five years by the agreement of the parties, and that petition does not state facts authorizing the dissolution of the partnership and the appointment of a receiver, and upon other grounds, which it is unnecessary to mention. A motion was made in vacation by plaintiff to change the venue of the cause on the ground of the alleged interest of the judge. This motion was overruled, and the motion by defendant to set aside the appointment of the receiver was sustained. From these rulings plaintiff appeals.
    
      8. Gr. Van Anda and O. 8. Crosby for the appellant.
    
      J. JET. Peters and W. A. Heath for the appellee.
   Beok, J.

— I. The motion for the change of venue was made pending the motion to set aside the order appointing the receiver, and was determined on the same day, but before tbe last-named motion. No notice of this application for the change of venue was given to defendant, neither does it appear that be appeared and waived notice. For tbis reason tbe motion was properly overruled. Preston v. Winter, 20 Iowa, 264. Neither does it appear from tbe record that the judge bad any, or such an interest in tbe case as would disqualify him from acting therein.

II. ¥e are of tbe opinion that tbe petition failed to show that any differences or difficulties between defendant and the agent of plaintiff resulted from tbe fault of defendant, nor are we prepared to say y. g^o^-g a state of facts which requires tbe appointment of a receiver to take possession of tbe property in order to protect tbe rights of plaintiff. It is not shown clearly, as it ought to be, that on account of tbe alleged differences injury would result to tbe parties. Such differences, without the fault of defendant, do not authorize tbe summary proceedings instituted in tbis cause, certainly not nnlesa it very clearly appears that tbe parties would suffer loss by continuing in possession of tbe property. These principles apply with more force to tbe case, in view of tbe fact that tbe preponderance of evidence before us is to tbe effect that tbe partnership, under an agreement of tbe parties, was to continue for five years, instead of being at tbe will of either party, as averred in tbe petition. Tbe record in our opinion fails to show facts which will authorize a court of equity to annul or set aside that agreement. There appears no error in tbe action of tbe judge vacating tbe order appointing tbe receiver.

Affirmed.  