Feidler v. Bartleson

161 F. 30 | 9th Cir. | 1908

GILBERT, Circuit Judge

(after stating the facts as above). It is contended that the demurrer to the original bill should have been sustained for want of jurisdiction and for want of equity. It is said that there was want of jurisdiction in the fact that the appellee sought by his bill to enforce in the Circuit Court a domestic judgment of a state court. But that such a judgment may be the basis of a creditor’s bill in the federal court is well sustained by the authorities. First National Bank of Chicago v. Steinway et al. (C. C.) 77 Fed. 661; Alkire Grocery Co. v. Richesin (C. C.) 91 Fed. 79; Bidwell v. Huff (C. C.) 103 Fed. 376; National Tube Works v. Ballou, 146 U. S. 517, 13 Sup. Ct. 165, 36 L. Ed. 1070. Further challenge to the jurisdiction is presented in the argument that because the appellee submitted himself to the jurisdiction of the state court when he brought his action against F. J. Feidler, and because the jurisdiction of that court was broad enough to afford him all relief which he here seeks, he had no right to invoke the aid of the court below against the appellants, who were not parties to the action in the state court. We find no merit in this. The appellants had no interest in the matter in controversy in the state court, and, could not have been made parties thereto. The judgment in that action established the debt of F. J. Feidler to the appellee. It remained to the appellee to enforce its paymexrt by any proper proceeding. The amount involved and the citizenship of the parties being such as to give jurisdiction to the court below, he had the right to bring his suit therein. It is true that the judgment had been rendered in the superior court of King county, and that the administration of the estate of Ed. L. Feidler was conducted in that court. But the equity and probate powers of the superior courts of the state of Washington are separate and distinct, and the appellee was not bound to file his bill in that court from the mere fact that, on the probate side, the same court had jurisdiction of the estate, nor could lie have obtained appropriate relief in probate proceedings. Stewart v. Lohr, 1 Wash. St. 341, 25 Pac. 457, 22 Am. St. Rep. 150; Winston v. Crowe, 28 Wash. 65, 68 Pac. 174; In re Alistad’s Estate, 27 Wash. 175, 67 Pac. 593. Assuming, as contended by counsel for appellants, that the superior court could have granted full relief to the appellee under the provisions of the statutes of Washington relating to probate and garnishment, the appellee was not limited to those remedies. He had the right to proceed by an original bill in equity, notwithstanding that he might have enforced the payment of his judgment at law by garnishment proceedings. Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260; Fiske v. Gould (C. C.) 12 Fed. 372.

It is urged, further, that the demurrer should have been sustained for the reason that the appellee sought by his bill to compel the defendants therein, who are both residents of the state of Washington, to litigate in the Circuit Court a demand which one had against the other. To this it is only necessary to say that the bill is not brought to permit or to compel the defendants therein to litigate between themselves. It is a bill to establish the existence of a partnership between Ed. L- Feidler and F. J. Feidler, only for the purpose of subjecting the interest of the latter in the partnership funds to the payment of the appellee’s judgment.

The ruling of the court below on the exceptions of the appellee to the answer to the amended bill is assigned as error. The exceptions were directed against portions of the answer which set up as a defense to the bill certain allegations to the effect that the judgment obtained against F. J. Feidler by the appellee was based upon various accounts, 23 in number, which had been assigned to the appellee by parties doing business in various eastern states, that F. J. Feidler had entered into a conspiracy with the appellee and other parties to defraud and pilfer the estate of Ed. L. Feidler, deceased, that F. J. Feidler had no real interest in the suit, but was permitting his name to be used in furtherance of the conspiracy, that the appellee was not the real party in interest, and that said accounts were incurred in the year 1898, and when the action was begun in the state court, were barred by the statute of limitations. The trial court, while ruling that the matters so alleged were no defense to the suit, held that, under the rules of equity practice, exceptions could not be taken to parts of an answer save for scandal, when the complainant had waived an answer under oath, and on that ground overruled the exceptions, but announced that the matter so pleaded would be wholly disregarded upon the final hearing of the case, and that any expense added to the proceedings by reason thereof, would be taxed to the defendants in the bill. The appellants were clearly not prejudiced by this ruling. The matters so excepted to in the answer constituted no defense to the bill. The appellants have no concern with the defense which F. J. Feidler might have interposed to the action at law. He was not bound on their behalf or on his own, to plead the statute of limitations. The facts so set forth in the answer fall far short of showing a conspiracy or fraud such as to invalidate the judgment. An assignment of claims to the appellee for the purpose of collection, could lawfully be made under the statutes of the state of Washington. Those claims being merged in a judgment, valid on its face, and unimpeachable for fraud, the judgment creditor’s right to enforce its payment is as unimpeachable as it would be if the judgment had been based upon a single debt originally due and payable to him. Bowden v. Burnham, 59 Fed. 752, 8 C. C. A. 248; Alkire Grocery Co. v. Richesin (C. C.) 91 Fed. 79. The appellants cite authorities to the proposition that whenever a judgment is sought to be used to the detriment of a third person, he may avoid its effect by showing that the parties to the former action colluded together, and thereby procured the judgment for the purpose of defrauding him, but that doctrine has no application to the present case, for here there is no showing whatever of a purpose to defraud the appellants, or to use the judgment to their detriment. What they are required to do by the final decree is to pay to the appellee herein money which in equity belonged to F. J. Feidler, and not to the appellants, money which they had no right to retain.

It is contended that thé judgment on the final settlement of the estate in the Commissioner’s Court at Nome is a final adjudication that Ed. E. Feidler, deceased, was the sole owner of the property of the Progreso Trading Company, and that the appellee is bound thereby. But the court at Nome was but a court of ancillary administration, and it may be doubted whether within the jurisdiction conferred upon that court, F. J. Feidler could have established his equitable interest in the property in the possession of the court. But, however this may be, the appellee was not barred by the final decree of that court from pursuing the assets in the hands of the distributees within the jurisdiction of the court below. In a similar case, Borer v. Chapman, 119 U. S. 587-599, 7 Sup. Ct. 342, 30 L. Ed. 532, the court said:

“The administration of the estate of Gordon, in California, was merely ancillary; the primary administration was that of the testator's domicile, Minnesota. Chapman was not a citizen of California, nor resident there; he was no party to the administration proceedings; he was not bound to make himself such. If he had chosen he could have proved his claim there and obtained payment, but he had the right to await the result of the settlement of that administration, and look to such assets of Gordon as he could subsequently find in Minnesota, whether originally found there or brought there from California by the executors or legatees of Gordon’s estate.”

It is urged that testimony of F. J. Feidler concerning the partnership transactions between him and Ed. E. Feidler deceased, was improperly admitted in evidence. We find from the record that, while testimony was being taken before the examiner, the question of'the competency of the testimony of F. J. Feidler as to his transactions with his deceased brother was certified to the court below, and that the court ruled that the witness should not be permitted to testify as to transactions with, or statements by, Ed. E. Feidler. Prior to that ruling, some testimony had been given by F. J. Feidler as to such transactions or statements, but thereafter none such was taken. We assume, of cpurse, from the ruling of the court below, that such testimony was disregarded by that court as it is disregarded in this court. Its admission, therefore, is no ground for reversal.

Upon the evidence which is found in the record, we discover no ground to disturb the conclusion of the court below upon the principal question of the case — the question whether or not E. J. Eeidler was a partner with Ed. J. Eeidler at the time of the death of the latter. The evidence shows beyond dispute that in the year 1900 they went together to Nome, with a stock of merchandise, and that during that year and the following year they were both engaged as partners in business al Nome, under the name of the Progreso Trading Company. After 1901, E. J. Eeidler remained at Seattle, where he occupied an office for the firm and attended to the business of the copartnership at that place, which was the point of purchase and shipment of all the goods of the firm. He received from Ed. L. Eeidler remittances of large' sums of money from Nome, and lie purchased the goods which were shipped to Nome. There is no evidence that a dissolution of the co-partnership was ever had or announced. There was testimony of admissions of Ed. E. Eeidler made in the years 1902 and 1903, tending to show that at that time E. J. Eeidler was his partner, and there was testimony, on the other hand, that Ed. E. Eeidler, at different times subsequent to 1901, stated that he was the sole proprietor of the Progreso Trading Company, and that he was paying his brother for his services. But it is not shown that any of these statements were made in the presence of E. J. Eeidler or were communicated to him. There was other evidence tending to show copartnership, notably a letter written by Edith M. Eeidler to E. J. Eeidler on February 18, 1901, indicating that at that time she considered him a partner. The preponderance of the evidence is in favor of the finding made by the court below.

We find no ground for reversing the decree. It is affirmed.