Nettman v. Schramm ( 1867 )

Dillon, J.

1. Amendment: from justice, Against the plaintiff’s objection, Schramm was allowed to amend his answer after appeal to the District Court. This amendment pleaded a former adjudication. We agree in holding that the court did not err in allowing the amendment to the answer, or in other words, permitting a pleading to be filed in the District Court setting up an additional reason why defendant was not liable. We also agree in holding that this additional defense was not established by the evidence. So that the cause stood in the court below and now stands in this court for determination upon its merits.

2._Executor: co-exeoutor. The further material facts appear in the written agreement of the parties as follows : “ It is agreed that Chas. J. J. Leopold and J. S. Schramm were qualified as the executors of Charles Nettman, deceased, and on tlie 4th day of November, 1858, they went together to the bank of Messrs. Coolbangh & Brooks, in Burlington, Iowa, to obtain the balance of money deposited with said bank by the decedent. That, after ascertaining the amount, they then and there gave a joint receipt for the whole amount, viz., $1763 12, and directed the bank to pass one-half thereof, viz., $881.56, to the credit of said Leopold, and the other half thereof to the credit of the said Schramm, which was' done. The money was not drawn out of the bank, and except as above, neither party ever had any actual possession or control or custody of the one-half that was transferred to the other’s credit. That Schramm has fully accounted for the share which he received, but Leopold did not account for the share which he received.”

It also appeared in evidence that the county judge had never given the said executors any directions concerning the money in the bank, and that the only paper lie gave them was their letters of administration.

It also appeared in evidence that on a former citation in A. D. 1860, to the executors (the said Leopold and Schramm), they appeared before the county judge, and filed an account as follows: “ Estate of Charles Nettman, deceased. Charles J. J. Leopold and J. S. Schramm, as executors of said estate, charge themselves as follows:

“ May 8th, 1860. To amount received of Messrs. Coolbaugh and Brooks, bankers, on deposit, $1763.12.”

Tin's account was, on paper, produced in evidence from the files of the County Court. The defendant, Schramm, testified on the present trial “ that he did not remember that he had ever seen the said account on paper.” Upon this evidence the District Court decided in favor of the said Schramm. The correctness of this decision is the question presented upon the present appeal. Although the cause has been twice argued before this court, the judges thereof have been unable to agree in opinion respecting it. Section 2467 of the Revision provides as follows : “ One of several executors may receive and receipt for money. Such receipt shall be given by him in his own name only, and he must individually account for all money thus received and receipted for by himself; and this shall not charge his co-executors, except so far as it can be shown to have come into his hands.”

Chief Justice Lowe and Mr. Justice Cole, are of opinion that upon the foregoing facts the defendant Schramm is not liable. Justices Wright and Dillon are of the opposite opinion.

In consequence of this equal division of the court the judgment of the District Court by operation of law stands

Affirmed.