Fowler v. Williams ( 1859 )

Mr. Chief Justice English

delivered the opinion of the Court.

On the 7th of August, 1851, David Williams, as administrator of Orville Shelby, deceased, obtained a decree against Absalom Fowler, for money collected by him as an attorney.

On the 5th of April, 1854, an execution was issued upon the decree, levied upon the lands of Fowler; and he filed a bill on the chancery side of the Pulaski Circuit Court, where the decree was rendered, against Williams and the widow and heirs of Shelby, for injunction, the cause was afterwards transferred to the Pulaski Chancery Court, where it was finally heard upon the pleadings, etc., the injunction dissolved with six per cent', damages upon the amount of money enjoined, the bill dismissed, and Fowler appealed.

1. The bill alleges, as one of the grounds for injunction, that at the time the decree was rendered against Fowler, he had not, as was well understood by Williams and his solicitor, collected the money sought to be recovered of him, but held the debtor’s note therefor; and that there was a parol agreement between the parties, that the payment of the decree was not to be enforced until Fowler collected the money on the note, etc.

The answer of Williams denies the agreement, and it was not proved on the hearing. If there was any such agreement it should have been incorporated in the decree, because it would be incompetent to prove such parol agreement to defeat or delay the execution of an absolute decree for the payment of money.

2. It is alleged in the bill, as a further ground of injunction, that Williams had ceased to be the administrator of Shelby, had no right to collect the money on the decree, was insolvent and irresponsible.

The answer admits that the administration only remained open for the purpose of collecting and distributing the money due upon the decree against Fowler; but denies that Williams had ceased to be administrator, etc., as alleged; and there was no competent evidence introduced upon the hearing to prove that his authority as such had terminated, or that he had no right to receive the money on the decree.

3. The bill also alleges, as a ground for injunction, in substance, that in August, 1842, the widow of Orville Shelby, through her attorney, notified Fowler, that when he collected the money on the claim in his hands, belonging to her husband’s estate, not to pay it over to Williams, the administrator, but to hold it subject to her order, she claiming it in her own right, and as guardian of her children, and there being a controversy between her and Williams about the money; and that Fowler informed her that he would hold the money, when collected, until the controversy between her and Williams should be settled, unless he should be legally compelled to pay it over to Williams; and he felt himself bound to do so, and to protect the rights of the widow and her children in the matter, etc.

It appears that the alleged notice of the widow to Fowle r not to pay the money to Williams, was given in 1842, some nine years before Williams, as the administrator of Shelby, obtained the decree against Fowler for the money. It appears, also, that Fowler did not, in his answer to the bill, upon which the decree was obtained, controvert the fact, that Williams was the administrator of Shelby, or that he was entitled, as such, to collect and distribute the money. It moreover appears from the correspondence between Fowler and Williams, exhibited with the bill in this case, that the money, when collected, was to be distributed to the widow and heirs of Shelby, after deducting the commissions of Williams, as administrator, etc., and it does not appear that Mrs. Shelby claimed an interest in the money otherwise than as a distributee of the estate of her husband. It was the right of the administrator to collect and distribute the money; and if he was not in fact the administrator, or had not the right to collect and distribute the money, as a part of Shelby’s estate, Fowler should have set that up as a defence to the bill filed against him by Williams to recover of him the money.

4. It is also alleged in the bill, as an additional ground for the injunction, that in the year 1852, after the decree was rendered against Fowler, one of the sons of Shelby represented himself to Fowler as being entitled to the whole amount of the decree, and notified him not to pay it over to Williams, as he had ceased to be administrator, and that if he did he would be held responsible, etc.

The answer of Williams denies that the son of Shelby referred to, was entitled to the whole amount of the decree, that he, Williams, had ceased to be administrator; and puts in issue the truth of the allegation that Fowler had been so notified not to pay the money over to him, etc., and upon the hearing Fowler introduced no evidence of the truth of the allegations of the bill so denied and put in issue by the answer.

5. It is insisted by the appellant, Fowler, that the Court below erred in dissolving the injunction before the widow and heirs of Shelby, who were made defendants, had answered the bill.

The injunction was not dissolved until the final hearing of the bill, which was taken as confessed by the widow and heirs of Shelby, who failed to answer. The cause appears to have been set down for hearing, by consent of parties, after Williams had answered, and there was a replication to his answer, and an order for depositions, etc. At the hearing the appellant moved for an order compelling the other defendants to answer, and that the injunction be continued until their answers came in, which the Chancellor refused.

In Johnson et al. vs. Alexander, 1 Eng. 307, the Court said that it was a settled rule that if all the defendants are implicated in the same charge, the answer of all will, in general, be required, before the injunction will be dissolved, but if the defendant on whom the gravamen of the charge is made, has fully answered, that may be sufficient.

Here the gravamen of the charge was upon Williams who had answered all the allegations upon which the injunction was granted.

If the other defendants had answered, admitting the truth of all of the allegations implicating them in the matter in controversy, the appellant would not have been entitled to the relief sought by the bill (the injunction of the decree) as against Williams, who had fully answered, and whose answer was not overturned by any evidence on the part of the appellant.

6. It is also insisted for the appellant that the Chancellor erred in decreeing damages against him on the dissolution of the injunction.

The argument is, that he was induced to file the bill by the representations of one of the distributees of Shelby’s estate, etc., that Williams had ceased to be administrator, had no right to collect the money on the decree, etc., etc. That the distributee alleged to have made these representations, admitted the truth of the allegations by failing to answer. That the damages awarded upon the dissolution of the injunction, if collected, will be distributed to him, as well as the other distributees, and he will thereby derive advantage from his own wrongful act, etc.

To this argument it may be responded, that if any of the distributees notified appellant that Williams had ceased to be administrator, had no right to collect the decree, etc., etc., as alleged, and he had any good grounds for believing it to be true, and that it would be unsafe, after such notice, to pay over the money to him, or to the officer upon the execution issued upon the decree, his proper course would have been to have filed a bill in the' nature of a bill of interpleader, and brought the money into court, and asked the court to make the proper direction as to the disposal of it.

But, instead of this, he filed a bill to enjoin the execution-of the decree, retained the fund in his own hands, and upon the final hearing failed to produce any evidence of the truth of the material allegations of the bill, upon which the temporary injunction was granted, and which were denied by the answer of the principal defendant.

Upon this state of case the Chancellor could not have done otherwise, under the statute, than award damages upon the dissolution of the injunction. The decree is affirmed.

Absent, Mr. Justice Rector.