September 15, 1915, services, Lillie & Lillie......

.$176.43

15.00

24.93

209.74

6.80

September 27, 1915, Mr. Sias, services...

September 29, 1915, insurance..

October 1, 1915, interest....

October 1, 1915, revenue stamps...

October 6, 1915, John H. Moore, services..... 187.13

"These items amount to the sum of $1,190.12, and added to the sum of $33,980.83, the amount paid to satisfy the judgment, make his total expenditures the sum of $35,170.95, and deducting this sum from the amount received for the lumber, viz.: $53,234.79, leaves a balance of $18,063.84. One-half of this sum, or $9,031.92, Mr. Munroe will be required to pay to the defendant, together with interest at five per cent. from September 29, 1915, to the time of payment of

same.

"The tug, boom chains and any other personal property on hand should be divided equally between the parties.

"During the trial of this case it appeared that defendant was mentally incompetent to transact business and a guardian ad litem was appointed to represent him. Before the conclusion of the case the defendant died and his administrator appeared and defended the case.

"The partnership being dissolved by the death of the defendant, the partnership affairs should be wound up and closed. The plaintiff will recover costs.

"The amount of the witness fees of the expert accountant is not determined, for the reason no proof was submitted as to the cost of the same. Proofs may be submitted and the amount of the same will be determined on a settlement of a decree herein.

"A decree may be prepared for signature in accordance with these findings."

Thereafter certain amendments were made to these findings, as follows:

"Certain amendments to the findings heretofore filed having been proposed, and upon the consideration of the same it appears that the accounts receivable in the sum of $625.29 were charged to the defendant, and the accounts payable of $27.03 were credited as

paid by the defendant. One-half the accounts receivable belong to each of the parties, and each party should pay one-half of the accounts payable.

"It also appears that certain advancements of money were made by the plaintiffs in September and October of 1915 and January, 1916, after the bill of complaint was filed. These items should not bear interest from the date the bill of complaint was filed, but only from the date of the payment of same. This would make a credit on the interest item of $83.64.

"It also appears that the item of 'September 27, 1915, Mr. Sias, services, $15.00,' should be stricken from the findings, as the same appears in the report of the auditor. This correction gives the defendant a credit of $7.50 in addition to the amount due from Stephen L. Munroe.

"The expert accountant, acting as a witness in the trial of this cause, is not included within the provisions of the statute in regard to employing and paying expert witnesses, therefore no order will be made for the payment of extra fees."

From a decree entered in accordance with this opinion and this amendment, both the plaintiff and defendant have filed notices of appeal.

KUHN, J. (after stating the facts). The decree in this cause was signed and filed on the 8th day of February, 1918. The record discloses that the plaintiff's claim of appeal was dated March 18th, 1918. The first question for us to determine is whether or not counsel for plaintiff are in a position to claim that they have the right and benefit of an appeal to this court. Section 13754, 3 Comp. Laws 1915, provides that

"Any party desiring to appeal from the order or decree of the circuit court in chancery shall, within twenty days after the entry of such order or decree, file or cause to be filed a claim of appeal in writing with the clerk of the court where such decree or order was entered, and shall also within the said twenty days pay a fee of five dollars to the clerk:" etc.

We held in Guthrie v. Leelanau Circuit Judge, 197 Mich. 321, that the payment of the appeal fee to the register in chancery within twenty days after the filing of the decree was mandatory. The right of appeal is a statutory one, and unless the mandatory provisions of the statute are complied with the court has no jurisdiction to entertain the appeal. See Bolton v. Cummings, 200 Mich. 234; J. F. Hartz Co. v. Lukaszcewski, 200 Mich. 230; Miller v. Johnson, 201 Mich. 535; also Brevoort v. Wayne Circuit Judge, 203 Mich. 388. We must therefore take the case as if no notice of appeal had been filed by plaintiff, and will therefore consider only the questions which are urged by defendant's counsel for modification of the decree. These questions are thus stated in their brief:

"1. The defendant claims $2,922.05 by reason of money paid out and expended by Michael Ward during the period named, and if interest is allowed to the plaintiff, the defendant would be entitled to the interest on this money during the same period that the plaintiff drew interest on their money they advanced, but we contend that neither side was entitled to interest.

"2. Defendant also claims and gives evidence tending to show that in the year 1911 Michael Ward had charge of this business in locating roads and a way in which the timber could be gotten out from where it was to the mill where it was sawed; that he expended for that purpose in money actually paid out $831.58. (R. p. 675.) He of course would be entitled also to interest, if the plaintiff was entitled to recover interest on the money they advanced.

"3. Defendant also claims that wrongfully and without cause, and when as a matter of fact there was no considerable money due to the plaintiff, they refused to sell this lumber and thereby kept it over, part of it a year and part of it nearly two years, and a large loss occurred in the carrying charge, insurance and so forth.

"4. It also appears in the case, as we have already mentioned, that instead of paying the judgment re

covered in Minnesota and saving expense, that the plaintiff permitted the lumber to be sold at public auction, thereby incurring an expense of over 700, and that that matter should be charged to the plaintiff; also that the plaintiff should stand whatever expenses he made in that behalf for help or otherwise.

"It is also claimed that the lumber on hand at the time of the sale and the time it was bid off by Munroe, was worth in the market between $12,000 and $15,000 more than it was sold for by Munroe, and that the plaintiff should account for this lumber at the market value, and one-half of that sum should be paid to the defendant.

"5. It also appears by the evidence that at the time that the plaintiff refused to allow lumber to be sold, that there was not, in fact, anything due to the plaintiff on the operating charges; that after that and after they had their injunction, the plaintiff paid certain charges that had been before that time incurred, and the court allowed interest on the money so advanced, and the interest on the money that had been paid for taxes; that this is unjust and contrary to law, and should be deducted, or credited back to the defendant.

"6. It also appears that Munroe, Boyce & Company hired attorneys for their own use and benefit; attorneys who were representing them in this case; that the attorneys were not hired to represent the defendants in any way, but the court allowed them to bring in those attorney fees and charge them in this case as an item against the defendant.

"7. It also appears that Munroe, Boyce & Company put up a fictitious bill that they never intended to charge against anybody, and brought it in and presented it, and a portion of that was allowed against the defendant; that their excuse for doing it was that Michael Ward charged for what he did in 1911, and that James Ward had his expenses, although there was no evidence to show that he ever charged anything that he did not actually expend for the benefit of the company.

"8. In addition to the above there were certain items of money paid out for freight, labor and like expenses, which are shown in the report of the auditor, which were not allowed to the defendant, and which should be allowed, we contend, in this case."

The court made an order requiring Michael Ward to produce his books and papers relating to the Minnesota lumber job, which books and papers the accountant desired for certain items to make up his account and report. Among other books was a ledger, which was offered in evidence and known in the record as "Exhibit H." The ledger was a private book of Michael Ward and was not a record of any partnership transaction. It showed charges against Munroe, Boyce & Co. in the sum of $2,922.05. The ledger was kept by James P. Ward, the son of Michael Ward, who stated that he had entered the balances of certain accounts making up these items in this ledger and that the items were taken from other books, the original entries being made in small account books by his father and transferred by the witness, James P. Ward, to a journal and the totals transferred from the journal to the ledger. These small account books and the journal had been previously destroyed by fire or were lost and were therefore not produced. It is the contention of counsel for defendant that the court erred in disallowing these items, because the ledger furnished adequate proof of the claim against Munroe, Boyce & Co. We are of the opinion that the court reached the proper conclusion in holding that the ledger did not furnish evidence sufficient to sustain the claim of the defendant for the items under discussion. The rule to entitle books of account to reception in evidence was well stated in Countryman v. Bunker, 101 Mich. 219, as follows:

"In order to entitle books of account to reception as evidence, it must appear that the party keeping and producing them is usually precise and punctilious respecting the entries therein, and that they are designed at least to embrace all the items of the account which are proper subjects of entry."

See, also, Mally v. Excelsior Wrapper Co., 181 Mich.