Citation Numbers: 11 Abb. Pr. 9
Judges: Hilton
Filed Date: 7/15/1860
Status: Precedential
Modified Date: 2/3/2022
John Daig, the husband of the defendant, died intestate, in October, 1816, and in the same year the defendant was appointed by the surrogate of the county of New York, administratrix of his goods, chattels, and effects. Among the property to be administered, was a household estate, which in January, 1817, she sold to Ira Burge, receiving from him in part payment, his note for $2,500. In March following, and before the note was paid, an action was brought in the Supreme Court, by John P. Demarest and wife, against the defendant and others, for the purpose of establishing an alleged will of John Daig, and in this suit an injunction was granted, restraining the defendant from intermeddling as administratrix or otherwise, with the estate or effects. Pending the suit, Thomas J. Coleman was appointed receiver of the rents and profits of the property of the deceased, and in addition was, in December, 1851, appointed special receiver of the Burge note then held by the defendant, but which on his appointment, was by her delivered over to him, and he afterwards was paid the amount of it, which, with interest, was on February 25, 1852, $2,808.13. In June following, the Supreme Court decreed, upon a hearing, a dismissal of the complaint in the
In May, 1854, several of the parties to the suit thus dis-. missed, upon a petition and notice of presentation thereof, duly served on Coleman, applied to the court for an order requiring him to render an account of his proceedings as trustee and receiver of the rents and profits, and also as special receiver of the proceeds of the Burge note; and upon the amount in his hands being ascertained, that he pay it over to be distributed by the court among those entitled to it. It seems that there was no opposition to this application, and accordingly an order of reference was made on May 12,1854, by the court to Dayton Hobart, Esq., to take and possess the accounts of Coleman,, and upon a settlement thereof, and the accounts in his hands being ascertained, directing that he pay it into the hands of the referee, to be distributed among the parties entitled to it.. And furthermore, it was provided that upon such reference, Coleman or any of the parties to this suit were at liberty to summon before the referee all persons interested in the accounts, so that the same might be finally settled.
Before, as it seems, any proceedings were had under this order, and while the defendant, Mrs. Daig, was ignorant of its
On the hearing of this application Coleman appeared, denied under oath all the fraud and deception charged against him, and alleged that the investment in the coal-bonds had been made in good faith, and at Mrs. Daig’s request. That as such receiver he had settled with her as administratrix,—taken from her an indemnity against further accounting, and therefore was fully discharged from the trust respecting the Burge note. He concluded his answer to the petition by asking for its dismissal, with costs. After hearing the parties, the court referred it to Theodore Sedgwick, referee, to take testimony upon all the issues involved in the petition and the accompanying papers, and report the same to the court, reserving all questions until the coming in of the cause, when the matter might be brought up by motion of either party.
Subsequently, the defendant having been notified -of the reference to Hobart, appeared therein. During its progress Coleman insisted that he should only be called upon to vouch for the moneys received by him from the real estate of John Daig, deceased, excluding the Burge note; but the referee decided otherwise, and held that under the order of reference he was required to report the accounts in respect to each, both as to the note and real estate. Shortly after this decision, Coleman
When the parties next appeared before Mr. Hobart, upon the reference thus consolidated, counsel for Mrs. Daig tendered to Coleman the three coal-bonds, and thereafter testimony was given respecting their value and character, and as to the transactions referred to in the petition of Mrs. Daig and Coleman’s answer to it.
At the close of the reference, the referee determined in favor of the claim of Mrs. Daig, by finding that Coleman had been shown to have received the proceeds of the Burge note, but had not shown any legal or valid payment thereof, and thereupon, the referee proceeded to and did determine the rights and interests of all parties to the moneys ascertained by him to be remaining in Coleman’s hands.
Notice of the motion for confirmation of this report having been given to Coleman, his counsel attended and opposed, upon the ground that the referee erred in charging Coleman with the Burge note, the same being personal property, and having been paid over to the administratrix; also, that he erred in excluding testimony offered upon the reference to show that Coleman had been discharged from the payment of the proceeds of the note of Burge; and, finally, that it was clearly proved that Coleman had paid the administratrix the moneys collected on the note, while, if the report was adopted, she would be entitled to receive one-half of the money over again. The court, on June 30, 1860, confirmed this report and decision, after allowing a credit of about $300 in addition to those allowed by
That action thus foreshadowed has been brought by the present plaintiff upon the receipt and guaranty of Mrs. Daig, so given by her at the time of the alleged settlement between Coleman and her on March 10, 1856 ; the plaintiff as assignee having surrendered to any rights of Coleman upon the instrument which forms the subject of this suit. The defence here is substantially a reiteration of the fraud and deception alleged in the petition of Mrs. Daig before referred to, and a general statement of the proceedings here narrated, claiming that by these the rights of Coleman and herself respecting such receipt and guaranty, and the proceeds of the Burge note had been therein finally adjudicated and determined.
At the trial of this case these facts substantially appearéd from the records, original orders, and proceedings produced from the files of the Supreme Court, and by which it was claimed that the defence of res adjudicata was established. The judge so held, and the plaintiff having appealed, that may be regarded as the only material question submitted for our reverse and decision, although it was urged on the argument that some of the evidence admitted, notwithstanding the plaintiff’s objection and subsequent exception, was incompetent and should have been rejected; such as the minutes of Mr. Hobart, the referee, of the proceedings and evidence before him, also copies of points used on the arguments had before the Supreme Court. There can be no doubt that these papers were improperly allowed in evidence, and if the facts stated were in any respect, so far as they are material upon the question before us, gathered from
A brief review of the proceedings which were instituted to call Coleman to account for the moneys which had come to his hands as special receiver, may be useful to illustrate the conclusion to which these facts necessarily lead us.
There can exist no doubt as to the power of a court of equity, of its own motion and at any time, to call upon a receiver appointed by it for an account of the money or property which has come to his hands, and to direct its distribution among the parties appearing entitled to it. The usual course, however, is for the court to await the action of those interested; and so it was in this instance. The suit in which Coleman was appointed having terminated, some of the parties to it, in conformity with the settled practice in such cases, applied to the court for the usual reference to pass and audit the receiver’s accounts. The order upon this application having been made without the knowledge of Mrs. Daig, who as administratix was the only person entitled to receive the proceeds of the Burge note, owing to the fact that it was part of her husband’s estate, which came to her for distribution in due course of administration (2 Rev. Stat, 82, § 6; Ib., 113, § 3), she subsequently presented her petition to the court, setting forth the pretended settlement of Coleman, and upon which he procured the receipt and guaranty which forms the basis of the present action. She alleged that it was procured from her by fraud and misrepresentation, and should not, therefore, be regarded as a bar to his being required by the court to account for and pay over to her, as administratrix, the moneys which had come to his hands as re
It certainly would make no difference whether the judgment or determination was in a common-law action, or in a proceeding which by the ordinary practice of courts of equity is of a summary character; but, as was said by Edmonds, J., in White a. Coatsworth (2 Seld., 143): “ It is enough that the question has been submitted to a judicial officer to be determined in a judicial way, that the parties and their proofs have been heard, and their rights settled by a judicial determination. When this has been done it is conclusive upon the parties until reversed, vacated, or set aside in the forms prescribed by law.” And it seems that this rule has been carried so far, that it has been applied to the taxation of costs, which though not technically a judgment, yet is a judicial act—a duty confided to judicial officers, to be exercised in a judicial manner, and by which parties to the proceeding are concluded. (Supervisors of Onondaga a. Briggs, 2 Den., 33.)
But it can be said that the court did not so determine on the hearing of the petition; yet the course adopted amounted to the same thing in effect. Instead of determining the question on the spot upon the proofs which the parties then offered, the usual reference was ordered to take testimony, and this direction was subsequently engrafted upon the original reference
Judgment affirmed.