CHAPTER 907*
ACTIONS FOR ACCOUNTING

      Sec. 52-401. Court to settle terms of accounting. In any judgment or decree for an accounting, the court shall determine the terms and principles upon which such accounting shall be had.

      (1949 Rev., S. 8145.)

      Court may find that building erected by husband on land owned by him and his wife is vested in them as cotenants. 82 C. 424. Concurrent jurisdiction of superior and probate courts in claim of cestui que trust for accounting. 102 C. 121; 104 C. 190. Refusal to order account is a final judgment from which an appeal lies. 102 C. 122. Lies to compel husband to account for wife's funds given him for investment. 104 C. 187.

      Cited. 5 CA 457. Role of auditor is as a trier of fact. 121 CA 96.

      Sec. 52-402. Procedure. Auditors' fees. (a) When a judgment is rendered against the defendant in an action for an accounting that he account, the court shall appoint not more than three disinterested persons to take the account, who shall be sworn and shall appoint the time and place for the hearing and give reasonable notice thereof to the parties.

      (b) If the defendant refuses to attend at the time and place appointed and to produce his books and render his account, the auditors shall receive from the plaintiff his statement of the account and award to him the whole sum he claims to be due.

      (c) If the parties appear and produce their books, the auditors shall hear the parties and their witnesses and shall examine the books. If either party refuses to be sworn or to answer any proper questions respecting his account, the auditors may commit him to a community correctional center, there to continue until he consents to be sworn and answer all proper interrogatories.

      (d) After hearing, the auditors shall adjust the accounts, find the balance due and immediately report to the court. The fees and expenses of the auditors, as fixed and allowed by the court, shall be paid by the party in whose favor the report is made and the court shall render judgment that the party in whose favor it was made shall recover the sum found to be due, with costs, including the fees and expenses of the auditors.

      (1949 Rev., S. 8146; 1953, S. 3206d; 1969, P.A. 297; P.A. 82-160, S. 145.)

      History: 1969 act substituted "community correctional center" for "jail"; P.A. 82-160 rephrased the section and inserted Subsec. indicators.

      The accounts should be settled, down to the date of the report. 11 C. 366; 24 C. 195. The auditors may report a balance as due to the defendant. 2 R. 122. Notice of counterclaim required. 18 C. 186. No formal judgment quod computent is required, unless an issue is tendered on that point; 37 C. 428; otherwise, if an issue be tendered. 24 C. 103. Nothing can be pleaded before the auditors which might have been pleaded in bar. Id., 194. A report that the defendant had fully accounted is erroneous. 2 D. 120. Auditors may require each party to file a bill of particulars. 37 C. 428. Improper joinder of defendants. 53 C. 41. Equity will not grant, where business is against public policy. 64 C. 211. Judgment for accounting is final as regards appeal. 74 C. 11; 102 C. 122. See note to section 52-405. Report of committee. 82 C. 424. Power of court to correct account where committee finds all items. 86 C. 199; 87 C. 241. See notes to sections 52-401, 52-425. Costs to be paid by prevailing party. 93 C. 150. When counterclaim is unnecessary. Id. Plaintiff must allege and prove demand and refusal to account. 100 C. 690.

      Cited. 5 CA 457.

      Subsec. (d):

      Trial court did not improperly apply subsec. to facts of the case so as to hold defendant liable for payment of entirety of auditor's fees incurred from accounting. 91 CA 619. Party seeking accounting has obtained report in that party's favor when report has established that at least some of amounts alleged to be due are in fact owed to the party. Court properly determined that all accountant's fees were chargeable to defendant. Id.

      Sec. 52-403. Accounting before a justice of the peace. Section 52-403 is repealed.

      (1949 Rev., S. 8147; 1959, P.A. 28, S. 204.)

      Sec. 52-404. Accounting between coexecutors and cotenants. (a) A residuary legatee, when all or any part of his legacy is withheld from him by an executor, may bring an action for an accounting against the executor for the recovery thereof. An executor, who is also residuary legatee, when all or any part of his legacy is withheld from him by his coexecutor, may bring an action for an accounting against his coexecutor for the recovery thereof.

      (b) When two or more persons hold property as joint tenants, tenants in common or coparceners, if one of them occupies, receives, uses or takes benefit of the property in greater proportion than the amount of his interest in the property, any other party and his executors or administrators may bring an action for an accounting or for use and occupation against such person and recover such sum or value as is in excess of his proportion.

      (1949 Rev., S. 8148; P.A. 82-160, S. 146.)

      History: P.A. 82-160 replaced "estate" with "property", rephrased the section and inserted Subsec. indicators.

      Account does not lie between executors, merely as such; 5 C. 26; nor between cotenants, where there are more than two. 16 C. 341. Cited. 25 C. 148. Tenant making necessary repairs may recover of his cotenants their share of the expense. 50 C. 256. In determining the "due proportion" of each cotenant, all equities are to be considered. 82 C. 425. Cited. 110 C. 656. At common law cotenant in possession was not accountable to cotenant for anything received from common estate. 118 C. 17.

      Cited. 5 CA 457.

      Subsec. (b):

      Cited. 222 C. 150.

      Cited. 14 CA 402.

      Sec. 52-405. Appeal in action demanding an accounting. When, in any action demanding an accounting, a judgment is rendered ordering such accounting, appeal may be had from such judgment to the Appellate Court, as if it were a final judgment. Such appeal shall have precedence in the Appellate Court.

      (1949 Rev., S. 8004; June Sp. Sess. P.A. 83-29, S. 45, 82.)

      History: June Sp. Sess. P.A. 83-29 deleted reference to supreme court and substituted appellate court in lieu thereof.

      Cited. 68 C. 61. Cited. 82 C. 425. If judge makes finding on judgment for accounting, need not make one as to same facts after account is taken. 87 C. 400. Appeal lies from interlocutory judgment refusing to order an accounting. 102 C. 122. Cited. 185 C. 320. Cited. 222 C. 331.

      Cited. 5 CA 457.