Fortunato v. Di Flippo

Michigan Supreme Court

Fortunato v. Di Flippo

239 N.W. 868, 256 Mich. 545, 1932 Mich. LEXIS 740

CourtMichigan Supreme Court

DecidedJanuary 4, 1932

DocketDocket No. 19, Calendar No. 33,985.

StatusPublished

This text of 239 N.W. 868 (Fortunato v. Di Flippo) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fortunato v. Di Flippo, 239 N.W. 868, 256 Mich. 545, 1932 Mich. LEXIS 740 (Mich. 1932).

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Opinion

Clark, C. J.

Di Flippo and Fortunato entered into a copartnership to erect buildings. Di Flippo filed bill for dissolution and accounting. There was reference to circuit court commissioner for accounting. The cause came on for hearing in the circuit court in May, 1924. Both parties were represented by counsel and were in court. In the course of the trial a consent decree was agreed upon by parties and counsel in open court by continued and open discussion. Part of the understanding was that Fortunato would take certain real estate at an agreed price of $5,500. A decree was entered on November 11, 1924. It is in substance that Fortunato was to have the real estate and pay Di Flippo $4,529.37. It *546 also provides that if Fortunato shall fail to. pay and to take deed, the real estate be sold and proceeds divided between the partners in . certain named amounts.

Motion for rehearing was made later and denied. No appeal was taken. The property 'was sold by circuit court .commissioner, and, after report and confirmation, the proceeds were distributed under the decree.

Fortunato filed this bill in 1928 to set aside the decree as “not being the result of a judicial determination, ’ ’ and as being fraudulent, and to set aside sale and deed pursuant thereto and subsequent conveyances. The bill quotes at length the testimony, colloquy, or argument leading up to the consent decree.

On motion the bill was dismissed. Plaintiff has appealed.

Passing the question of laches, of former adjudication, of estoppel by acceptance of distributive share under the decree, we think the bill properly dismissed. It shows no equity on its face. Having been made by consent of counsel and parties in open court, it is immaterial that it may not have full evidentiary support.

Affirmed, with costs to appellee.

McDonald, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred.

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Clark, C. J.

Di Flippo and Fortunato entered into a copartnership to erect buildings. Di Flippo filed bill for dissolution and accounting. There was reference to circuit court commissioner for accounting. The cause came on for hearing in the circuit court in May, 1924. Both parties were represented by counsel and were in court. In the course of the trial a consent decree was agreed upon by parties and counsel in open court by continued and open discussion. Part of the understanding was that Fortunato would take certain real estate at an agreed price of $5,500. A decree was entered on November 11, 1924. It is in substance that Fortunato was to have the real estate and pay Di Flippo $4,529.37. It *546 also provides that if Fortunato shall fail to. pay and to take deed, the real estate be sold and proceeds divided between the partners in . certain named amounts.

Motion for rehearing was made later and denied. No appeal was taken. The property 'was sold by circuit court .commissioner, and, after report and confirmation, the proceeds were distributed under the decree.

Fortunato filed this bill in 1928 to set aside the decree as “not being the result of a judicial determination, ’ ’ and as being fraudulent, and to set aside sale and deed pursuant thereto and subsequent conveyances. The bill quotes at length the testimony, colloquy, or argument leading up to the consent decree.

On motion the bill was dismissed. Plaintiff has appealed.

Passing the question of laches, of former adjudication, of estoppel by acceptance of distributive share under the decree, we think the bill properly dismissed. It shows no equity on its face. Having been made by consent of counsel and parties in open court, it is immaterial that it may not have full evidentiary support.

Affirmed, with costs to appellee.

McDonald, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred.

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Bluebook (online)

239 N.W. 868, 256 Mich. 545, 1932 Mich. LEXIS 740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fortunato-v-di-flippo-mich-1932.