
    Albert H. Petrie v. John Torrent.
    [See 88 Mich. 43.]
    
      Equity practice — Appealable order.
    
    An order confirming a commissioner’s report on a partnership accounting, who finds that the complainant is entitled to a decree for a specified sum, unless the question whether such decree should be made is affected by pending litigation, which question is left to the court for consideration and decision, is not an appealable order; citing Kingsbury v. Kingsbury, 20 Mich. 212.
    Motion by defendant to^ dismiss an appeal from an order confirming the report of a commissioner on a partnership accounting.
    Argued April 4, 1893.
    Granted April 21, 1893.
    The facts are stated in the opinion.
    
      Smith, Nims, Hoyt & Erwin (Edwin F. Uhl, of counsel), for motion.
    
      Bunker & Carpenter (Kingsley é Kleinhans, of counsel), contra.
    
   Hooker, C. J.

Upon a bill filed for an accounting between copartners, the commissioner reported the testimony, with his opinion thereon. His conclusion was as follows:

20. Finally, I find and determine that the complainant is entitled to a decree for the sum of $93,331.64 at the date of this, my report, as his share of the profits of the business between the parties upojj. its operations up to December 31, 1891, and interest thereon to the date of this report, unless the question of whether such decree should or ■should not be made ought to be affected by the three suits hereinbefore referred to; and, if so, to what extent, and how, is left to and with the court for consideration and final -determination.”

Both parties excepted to this report, and upon the hearing thereof the court ordered as follows, viz.:

“1. That said exceptions be, and the same, and each and every one of them, are hereby, overruled, and that said report be, and the same is, in all respects hereby confirmed.
That the' application of the complainant for solicitors’ fees in addition to those fixed by the rules of court in ordinary cases be, and the same is hereby, denied.
“3. That the apjDlication of the defendant, contained in his petition filed October 8, 1892, staying proceedings in this cause, be, and the same is hereby, granted, and that all proceedings herein, except the filing by the defendant of the statements in regard to the business as provided by the original decree in this cause, be, and the same are .hereby, stayed until the further order of this court.”

From this order the comxfiainant ajopealed to this Court. ^Defendant moves to dismiss upon the ground that the -order was not a final order, and therefore could not be ; appealed from.

The confirmation of the report is not necessarily final. 'The order does not direct the remedy to be had against 'either party, or provide any way for enforcing it. It is ■■still within the power of the court to send the case back to the commissioner. By the very terms of the report which is confirmed by the order the amount found due is .subject to change by matters in process of litigation.

The case falls within the rule laid down in the case of Kingsbury v. Kingsbury, 20 Mich. 212, and the appeal must be dismissed, with costs.

The other Justices concurred.  