Bieber v. Fechheimer, 9 App. D.C. 548

Bieber v. Fechheimer

9 App. D.C. 548 | D.C. | 1896

Mr. Justice Morris

delivered the opinion of the Court:

1. It was suggested in argument on behalf of the appellees, although not very strenuously insisted on, that the order appealed from is an interlocutory, and not a- final, order, and therefore not appealable. We cannot so regard it. It may be that to some extent the point is well taken, inasmuch as the order is not a peremptory order for the issue of the writ of fieri facias, but merely directing it to be issued in the event that the complainants should apply for it. But as the complainants had already applied for it, and had directed the writ to be issued, and as it may be presumed even that it was outstanding when the order was made, and had only been held up temporarily, this objection cannot be regarded as substantial. Nor can it be regarded as substantial that ordinarily an order for the issue of a writ of fieri facias, whether issued by direction of a party claiming to be entitled to it, or by direct order of the court, is not an appealable order, inasmuch as such an order is one of course in the execution of a judgment or decree; and the appeal, if proper, should have been taken from the judgment or decree, and not from the order enforcing it. But this implies that the judgment or decree sought to be enforced is a final judgment or decree, from which an appeal might lie, and which it would be proper to enforce by a writ of execution. If a judgment or decree is merely interlocutory, not a proper subject for appeal, and not proper to be enforced by a writ of execution, it is difficult to see why the actual issue of a writ of execution thereon should not be regarded as a final*553ity upon which the exercise of the appellate power could be invoiced. If, upon examination under the appeal, the judgment or decree whereon the execution was issued, should be found to be a final judgment or decree, the propriety of the issue of the writ of execution would no longer be matter for controversy. But if such judgment or decree should be made to appear as merely interlocutory, it is plain that in no other way could the appellate power be invoked than by appeal from the order for the issue of a writ of execution. Certainly it would not be competent for parties to evade or prevent the exercise of the right of appeal by regarding and treating that as final which is merely interlocutory. If the judgment or decree sought to be enforced in this case was in fact and in law only an interlocutory proceeding, there was no opportunity for an appeal until it was sought to enforce it as a final adjudication; and if there was no right of appeal when it was sought to enforce it, there was no right of appeal at all 'in the case. This is a conclusion which is inadmissible.

2. The question recurs, therefore—and it is the only question in the case—whether the decree of the Supreme Court of the District of Columbia in General Term in this cause, so far as it adjudged that the complainants should have and recover from the defendant Bieber the amount of their judgment (of |1,000 against Hollander), was a final decree which might be enforced by execution independently of the other provisions of the decree.

It is very clear to us that the Supreme Court of the United States, when the case was before that tribunal, did not regard this decree as a final decree in the sense now claimed for it. That court, in its opinion, said: “If the decree appealed from be a final decree at all, it is final only for the amount of the judgment. If it be regarded as a decree for the whole amount of the plaintiff’s claim against Hollander, then it is clearly not a final decree, since the case was remanded for further proceedings, and until *554such proceedings were had, the amount of such indebtedness could not be fixed in such manner as to give this court jurisdiction of an appeal, and was purely conjectural upon the court finding that amount to be due. Union Mutual Life Insurance Co. v. Kirchoff, 160 U. S. 374. This conclusion is not the less irresistible from the fact that the note and open account were reduced to judgment after the bill was filed, since this judgment was not made the basis of the bill, and the finding in the decree is restricted to the amount of the first judgment of $1,000.”

And with reference to the “ further proceedings ” directed by the decree, the Supreme Court said: “ It is true that it also decreed the assignment to be void and remanded the cause for further proceedings, that upon such further proceedings the court might direct an account to be taken and the property to be divided generally among the creditors, and that upon such accounting the plaintiffs might be admitted to prove the full amount of their claim.”

It is argued now on behalf of the appellees that, in making this latter statement in reference to the scope of the “ further proceedings ” to be had in pursuance of the decree, the Supreme Court was under a misapprehension as to the character of the suit and the purpose of the decree. It is claimed that this is not a creditor’s suit for a general accounting, wherein other creditors could intervene and participate, but merely a suit brought by the appellees for their own benefit, and founded upon a judgment at law procured by them. But we think that this claim is itself a misapprehension.

The suit, it is true, is not a creditor’s suit in the strict technical sense of those terms, which have reference only to the estates of deceased persons, but what is known in the text books as a quasi-creditor’s bill, a suit to enforce a judgment at law by reaching equitable assets through the removal of obstacles against such enforcement in the ordinary way. But other creditors may intervene in such suits, and *555become parties to them; and in many such cases an accounting would be both proper and necessary. And certainly we may presume that the appellees will not contest, the accuracy of the statement of the Supreme Court, when it says, that “ upon such accounting the plaintiffs might be admitted to prove the full amount of their claim.”

The “further proceedings” for which the cause was remanded, must necessarily mean either an accounting for the purpose of the division of the property of the debtor between creditors; or an accounting to enable the complainants, or any other parties that might be entitled thereafter to intervene, to prove their full claims; or an accounting to require the assignee to make disclosure of the property in his hands and to show what disposition of it, if any, he had made. Unless the words mean some one or all of these things, they are wholly meaningless. For it would be absurd to suppose that the cause was remanded for the purpose merely of having execution awarded upon the decree, when execution might equally well have been awarded in the decree itself.

Now, if the “ further proceedings,” for which the cause was remanded, necessarily imply an accounting of some kind, it is clear that the decree was not absolutely final even for the sum of one thousand dollars. A liability may be adjudged even for a specific amount, and yet it does not necessarily follow that the adjudication thereon is such a final adjudication of the cause as would authorize either an appeal or a writ of execution. And this is true both at common law and in equity. For instance, a judgment by default at common law fixes liability, but it is not a finality. And to the same effect is the decree pro confesso in equity. And yet no writ of execution could be issued upon either. Similarly, in all cases in equity involving an accounting it is necessary that a complainant should show himself entitled to an accounting; and this he generally does by proving his claim and thereby fixing liability upon the defendant. But it does not necessarily follow therefrom that he will be finally *556adjudged in the cause to be entitled to recover the amount of his claim from the defendant. The defendant who is required to account is usually a trustee, a receiver, an executor or administrator, or, as in the present case, an assignee; and, while a principal debtor may be liable for a claim in its entirety, such a defendant, when brought to an accounting, usually can only be held liable to the extent of the assets of the principal debtor that have come into his hands, or that should have'so come. This is no more than an elementary principle of equity jurisprudence.

Now, the decree under consideration here is quite peculiar in adjudging that the complainants should recover absolutely from the assignee Bieber the sum of $1,000, for which they had obtained judgment against the principal debtor Hollander ; and this, too, apparently without any accounting whatever on the part of Bieber, so far as the record before us discloses. It is true that there is in the record what purports to be an account or report rendered to the creditors by the assignee on June 25, 1886, more than a month before the bill in this case was filed, in which assets were shown in the hands of the assignee to the amount of upwards of $18,000. But the same account shows a total indebtedness of the insolvent debtor amounting to upwards of $39,000. But it certainly does not follow that because the assignee has in his hands assets amply sufficient to pay the claim or claims of the complainants, if there were no other claims, all the other creditors, preferred and unpreferred, are summarily to be cut out in favor of the complainants, because as to these the assignment was fraudulent and void. Such fraud upon the part of the insolvent does not affect the claims of other creditors, unless they have participated in it; and it would be most iniquitous so to hold. And if the assignee has in good faith paid out the assets in his hands to the bona fide creditors whose claims were notified to him, it is not apparent how he can justly be held liable to the complainants.

It is very clear to us, therefore, that the liability here *557decreed against the assignee Bieber is conditioned upon his being found in a proper accounting to have assets of the debtor in his hands applicable to the claim of the complainants; and that such an accounting was intended to be included in the “ further proceedings ” that were directed by the decree to be had. Were it otherwise, and were the decree to be taken as a personal decree against Bieber for the sum of $1,000, we would be compelled to hold the decree to that extent as void. For Bieber was sued only as the assignee of Hollander; and there was no jurisdiction in the court to render a personal decree against him, regardless of the fact whether he had, or should have had, assets of the debtor in his hands. Only to the extent of assets of Hollander in his hands applicable to the claim of the complainants can Bieber be properly held liable; and the extent of those assets can only be ascertained by an accounting or by the admission of the parties.

There is also another consideration which we cannot overlook. If we were to regard the decree in question as a final adjudication upon which execution could properly be issued, it could only be upon the theory that all the matters in controversy in the suit, other than the claim upon the judgment for $1,000, had been rejected by the court. McCall v. Carpenter, 18 How. 297; Washington, &c., Steam Packet Co. v. Sickles, 5 Wall. 580; Cromwell v. Sac County, 94 U. S. 351; Nesbitt v. Riverside Independent District, 144 U. S. 610; Wilmington & W. R. Co. v. Alsbrook, 146 U. S. 279; Dowell v. Applegate, 152 U. S. 327. For all the claims of the complainants were set forth and directly involved in this suit; and if the decree found no more than one of them to be tenable, and made its determination of that one a final adjudication of the case, then it must have rejected the other claims. But pláinly this was not the purpose or scope of the decree. The Supreme Court has held that such was not the purpose or scope of the decree; and a different theory would not be for the interest of the complainants.

*558We are of opinion, therefore, that the decree of the Supreme Court of the District of Columbia in General Term, which is in controversy here, was not a final decree in the sense that a writ of execution can be issued upon it. It contemplated an accounting by the assignee and proof by the complainants of their other claims, now it seems all reduced to judgment, and thereupon a final decree adjudicating the rights of the parties. Being of this opinion, we think that it was error to issue the writ of execution that was issued in the cause, and that the order for the issue of such, writ was unathorized by law. That order, therefore, must be reversed, with costs; and the writ, if issued, should be recalled or vacated.

The cause will be remanded to the Supreme Cowrt of the District of Columbia, with direction to vacate the order appealed from, and for further proceedings not inconsistent with this opinion. And it is so ordered.