Fidelity & Deposit Co. of Maryland v. Lindholm

jury. The ease for trial before came on Appellee by made out facie ease prima showing provided for amounts unpaid. Evi- of distribution were Jr., Crider, Joe and B. Runkle Clarence proved dence counter- which introduced appellant Fi for Angeles, Cal., both of Los claims in favor of the administrator amount- Maryland. of delity Deposit Co. & ing surety sought $583.37. to intro- Cal., Angeles, relating payments by Los duce evidence Monten, of made William A. the administrator appellee prior appellee. for date of the decree of distribution. The court SAWTELLE, Cir- and Before WILBUR sustained an to this evidence under NORCROSS, District Judges, and cuit 'circumstances hereinafter set forth. The Judge. jury bring court instructed in a ver- appellee in the sum of $17,646.72, dict Judge. SAWTELLE, Circuit representing provided the amount for in the was, at the deceased, Lindholm, L. Albert de,cree distribution, of less the amount of the commenced,the adminis- this action time counterclaims, administrator’s with interest Lindholm, L. Peter estate of trator decree, from the date ihe $22,762.58. total Lindholm, deceased, was L. Peter deceased. November 14, 1927, prior to the com- and administrator said father of mencement this action, appellee instituted His estate lindholm. appellee, Emil G. a suit in against in the court below of the Superior Court in tlie probated appellant, surety, his county of Los for the of California state purpose vacating for the the decree of dis- of said The decree of distribution Angeles. claiming tribution, that a further accounting that the March ordered estate, dated would show balance due from the adminis- $18,- belonging thereto, the amount of cash $315,000 pro- trator of instead of the amount Lindholm, to Emil G. 230.09, “be distributed vided in the decree of distribution. The de- Lindholm’s dis- Emil G. decedent.” son cree in that suit was in favor defend- estate remain- father’s share of his tributive ground ants, on ihe that the decree of distri- August 2.7, 1930, he com- ing unpaid, on bution had become open final was not against court below in the action menced attack, showing there of extrinsic Lindholm, the admin- brother, Albert L. his fraud. appel- joined istrator, defendant Lindholm, Albert L. the administrator of surety company, the adminis- surety Lindholm, of Peter L. deceased, demurrers to the Defendants’ trator’s bond. pending appeal, died and, on motion of ground that the action was complaint, former, administrator of the appeal three-year period of limitations barred of Albert L. Lindholm this court has been of Civil section 338 contained dismissed. California, were overruled. Procedure surety contends brief that the by interposed the answer of The defenses court erred in overruling its defense of the were, the bar of the surety company first, statute limitations, in excluding evi- second, limitations, and, that a statute dence of transactions antedating the decree surety been committed fraud had relating distribution and alleged a false account been filed by reason of falsity final account filed the ad- probate proceeding the adminis- ministrator in probate proceeding. estate, Peter L. Lindholm’s with trator of Appellant knowledge plaintiff-appel- has the statute and consent of raised of limita tions purpose concealing from the demurrer and answer. The ad lee, given ministrator’s pursuant “the bond was probate court fact numerous to sec dealings tions plaintiff 1390 of the transactions and which California Code of (now Lindholm had Civil Procedure section defendant Albert L. Probate conduct- Code). pur- provided and for The former ed with said estate section as fol “Every person lows: whom nia case letters testa question. deals with this mentary or of There are administration directed to numerous authorities from other issue, must, jurisdictions receiving them, execute a they,, necessity, but cannot bond to California, the State of two or answer our directly with pe- because the by more sufficient to be approved the riod for sureties, limitation the commencement of superior court, judge or a provided solely by thereof. In form action is statute and the joint must several, bond be and we must the by controlled here the statutes penalty must not he less than twice the value of California.” personal property, prob the the twice Again, eases, “There are however, deal rents, able value of the annual issues and ing public with bonds officers, which are profits belonging real to the es property exactly analogous principle in and which by tate, which values must ascertained three-year show that period applicable is superior-court, judge thereof,"by exam or a bar,” among citing, case at others, the ining any party applying, on oath the following: County Hall, of Sonoma v. 132 persons.” 589, 257, 12, 459; Cal. 62 312, P. 65 P. Nor provided Guaranty Surety And section 1390 “The ton v. Title Co., that: & 176 Cal. bond must be 212, 16; Guaranty conditioned that the executor or 168 P. Peterson Title v. faithfully Surety administrator shall Co., execute du- & 239; 35 App. 103, Cal. 169 P. Guaranty according ties Hellwig of the trust to law.” Surety Co.) Title & 39 App. Cal. 422, 179 P. 222. Appellant that, contends inasmuch as the requires giving statute carefully of the bond and We have examined all of these prescribes thereof, the terms and conditions cases and are of are not statutory is it follows that the a bond applicable bond here. any liability and that created thereunder is a liability by “A created statute” is “a liability within the mean- created statute liability which not would exist but for the ing of 338 of the section California Code statute.” Hocking Valley R. Co. v. New Procedure, provides Civil which that “an ac- 6) York Coal (C. Co. 727, C. A. 217 E. upon liability statute, tion oth- created County In the ease of Hall, Sonoma v. penalty er than forfeiture,” or must be supra, chiefly upon by appellant, relied years. commenced within three appears that county was Hall recorder of Appellee, hand, on the other contends county, That Sonoma Cal. office created liability action is one cre- by statute pre- and the duties were recorder’s by statute, ated but “one to from is recover solely regulated by the scribed and statute. money sum surety ap- distributed to prevails situation similar the other A action,” probate pellee hence the dealing relied upon, with cases bonds of three-year-limitation above set forth public officers. applicable applicable, but statute is section Procedure, Civil The office of administrator was not un period years five prescribes a Cooley’s known the common law. Black “upon commencement of actions (4th Ed.) 1, 2, p. stone Vol. Book 504. And or decree of court.” law it under the common was made the du ty of the appointing the ordinary admin .1666of Section the Code of Civil Proced- require istrator to the administrator to “enter (now ure section Code) 1021 of Probate faithfully into a bond with sureties to exe provided as follows: “In order or decree, Id., cute his trust.” p. 508. And persons the court name pro- and the statute II, pro and 23 Car. e. portions parts or which each shall be en- that, expiration vided after the year of one titled, persons may demand, such sue intestate, the death for, respective and recover their shares from should be distributed in the therein manner the executor or administrator, or person provided. Id., p. 516. possession. the same in Such order or conclusive to the rights of See, also, (5th Ed.) Schouler p. on Wills heirs, legatees, devisees, subject only to 1139, reading prac- § follows: be reversed, aside, set appeal.” or modified on taking tice of administrators, bonds from frankly It distinguished appellant from executors, pre- must have provision “there is no statutory English spiritual law vailed long courts of California dealing specifically English the first colony planted with the statutory period for the America. institution of an ac- Eor the VII, statute 21 Hen. tion to enforce distribution of an e. ordinary surety estate. Our sec. directs the to take research has granting failed disclose Califor- administration. Before the flows from ute, but one which jurisdiction spiritual transfer of is not barred action distribution, and that the England, statute probate in courts of new three-year by the statute. 1671, and served from II, c. 22 & Car. fully what detail centuries, to two nearly con appellant’s We turn next this ad- condition form and should excluding the the court erred tention that ordinary di- bond; ministration antedating the de transactions evidence of two with 'sufficient bonds rected to take al relating to the cree of distribution being had to respect sureties, more able leged falsity final account filed of the ordi- name estate, in the value proceeding. administrator in the imposed herein nary.’ The condition Examining point, we on this record in- true return a towas, following occurred: find specified or ventory the court at appellee was cross-examination, the On truly; well and date; to administer following question: asked the ad- his just account of make a true and . you Lmdkolm, have “Mr. Runkle Mr. the residue pay ministration; to deliver and you $200.00 received since testified that to render appoint; and judge should as Yes, 2,1927 ? A. sir. March court, a will after- up letters in should presented.” wards be “Q. you Did receive other amounts prior to that time? of California Section 5 Civil of code, of this provisions provides that: ''The Objected Just moment. “Mr. Monten. substantially the same as they so far as are cross-examination, nor with- to as not law, must be common existing statutes or the purview of the direct examination thereof, not as as continuations construed reason if this for the further witness. Also new enactments.” that it is should be the court seeks proper examination, that it to ascertain Legislature Cal- April 13, 1850,the On defense of their facts be in “the which would providing that passed an act ifornia object to the intro- claim, as which I will England, it is not so far as common law ground evidence, duction on the the Consti- inconsistent with repugnant to or law, defenses, their as a matter of are none of Constitu- the United States tution of defenses. California, shall tion or laws State of this the courts rule decision in all be the suppose I that refers to “The Court. California, 1850, p. 219. state.” Statutes property of the estate? your Yes, “Mr. Runkle. honor. is sometimes re administrator The limited My of defined and present to as a trustee sus- ferred “The Court. view to court, well necessary as objection, His relation to powers. if it is make tain fiduciary char distributee, presume it time, is, to the and I at an officer objection in one sense while he “is on the acter, and to sustain the ruling must be 204), Smith, 53 (Ex parte Cal. kind fore- of that ground of the Court” that matters in the usual public my officer words, a state or decree; he is not in other closed fiduciary relation to the dis of distribution is a sense. This final of it view until the final settlement tributee continues the amount he is then enti- judgment Precisely The statute of estate. of his administration account. from the to receive tled begins presented of the sure presume, to run favor were matters, limitations I same final decree of distri ty Judge date of the James the other heretofore before the cause of action bution, the date when ease.” against the adminis favor of the distributees thereupon objec- sustained the The may accrues, trator be invoked as a bar exception was noted counsel and an tion, against them in action on the adminis defendants. for both trator’s bond. Emil The then called G. Lind- defendants plaintiff, under section 2055 holm, Cal- duty The to account is administrator’s Procedure: Civil ifornia Code independently obligation common-law above-quoted statutes, if not al statute. The Lindholm, you Runkle. Mr. “Mr. have together far relate procedural, in so you $200.- testified that received heretofore duty to faithful of the administrator Yes, A. 00? sir. sureties, liability ly account, and the you “Q. receive Did sums than rights obligations. create new no No, A. $200? sir. moment, please. Monten. Just a “Mr. is that the administra Our conclusion you fix the date? Will by stat- obligation one created tor’s is not any dence with referring particularity required by “Mr. Runkle. I am now to rule prior time court, part of the 11 fol- Maxell date alleged lows: final decree. “When the error is to the rejection admission evidence, or to the object ques- “Mr. Then I Monten. assignment quote of errors shall the full sub- your tion, ground goes that it honor, on the reject- stance of the evidence admitted or prior into matters date of decree. ed.” “The You deem an effort Court. See, also, O’Brien’s Federal Manual of impeach entered in the Procedure, Appellate page 109, Supple- ? ' ment thereto, page 44. your honor. Yes, “Mr. Monten. stands, under Indeed, as it now record prop- refers to The evidence Court. impossible would have for the appel- been estate, doubt. erty of the quote “rejected” evidence, your honor. Yes, “Mr. Runkle. there was as a matter of fact no evidence of- sus- will be “The Court. rejected. fered or question asked, tained.” as we have seen, was and remains answered seen that foregoing, it will be From the in the record; and there was neither an- appellee had the question to whether the question other proffer proof. nor a the any prior the date of to received .sums point, qualification, rule in with its appellee, in the by the was answered repeatedly Supreme has the been ques- Though objection to the negative. an leading Court. case In the of Buckstaff v. sustained, was not strick- the answer tion was & Co., Russell 151 626, 636, 637, S. U. S. still stands. record, the and it en from 448, 292, 451, Ct. 38 L. Ed. Mr. Justice Har Assuming, deciding, without that the said: lan objec- sustaining appellee’s erred in the court requirement assignment that an question, cannot find that the we tion upon rejection error the admission or based ruling, for, prejudiced the appellant was must, of evidence in a deposition the ease of question. appellee the fact, the answered in part, excluded in whole or in state the full question, the appellant itself asked the Since substance the evidence so admitted or re- answer complain that the cannot, course, it jected, show, means that the record must and, in theory the its case unfavorable to was appropriate form, the nature of such evi- discloses, shut the door as the record so far may dence, in order that court determine the ad- quite apart from inquiry, further to whether or not error has been committed to event, the ruling of the court. In verse prejudice party bringing the the the up the ease effort to follow made no appellant here for review. answered, by asking ques- question thus payments the to establish to tending tions apply “But this rule does not where the of the decree of prior to the date appellee person, in witness testifies and where the appellant Nor the did make distribution. propounded prop- to him is not question proof. proffer In the absence of form, framed, in is clearly er hut so ad- clearly so framed admit of question a mit answer an the claim or de- favorable appellant’s answer favorable to the an de- * * * producing party the him. fense of fense, proof necessary. proffer question proper form, If the is in and clear- ly of an answer admits relevant to the the issues assignment ques in party and favorable to the on whose “The court side follows: erred in re tion is as called, witness is the will error to ex- defendant, offered jecting evidence Fi clude it. Of Company course, court, the in delity Deposit its dis- Maryland, cretion, may require or motion, party corporation, to show that defendant Albert question behalf put in whose payments L. Lindholm made certain state had in proposed proved by the facts to be plaintiff prior cash to the date of the an- de But, done, rejection if that be not swer. cree of distribution in the estate of Peter L. of the answer will be deemed not, Lindholm, error deceased, payments which cash according upon question, wore face, its disclosed or contained if in the ac proper form, may counting may clearly presented by ad- said defendant Albert mit of answer party L. favorable to the Lindholm California court propounded.” (Italics whose behalf it is in said estate our accounting said own.) decree of distribution was rendered.” It will assign- may foregoing foregoing excerpt noted that the From be seen ment does not set forth the the insistence Supreme excluded that evi- Court has reply prayer appellants sum. In to that proper least a placed upon at there urged pleaded distribution, and the decree of case In instant the record. upon the that between it was conclusive proffer; question nor there was neither’ a this conten- parties. The court sustained assignment error now under hence the plain- Lindholm, that Emil tion, and held in the record. discussion has basis prove action, tiff in not entitled that Young, Life Ins. Co. v. In Missouri State larger received the citing said, F.(2d) 399, claimed. The administrator amount supra: Co., “We Russell & Buckstaff v. surety having judgment as pleaded thus sufficiently indicates the think the greater for a plaintiff’s bar to claim rule expected within answer favorable judgment, amount than that shown testifies where the witness applicable trials say that they cannot now be heard person the court.” judgment upon which relied Origet Hedden, 155 U. See, also, S. procured it was equity because suit void Whitney v. 130; Ed. 39 L. S. Ct. appel- fraud, If there was fraud. 713, 41 L. 637, 645, Ct. 17 S. Fox, 166 U. S. by pleading surety company waived cite Buckstaff these cases 1145. Both of Ed. the fraud bar, if it knew as a approval. supra, with Co., v. Russell & allegation there is no time; at the Air Line case of Seaboard In the recent course suggestion in the answer and no 86, 91, 53 S. S. Ry. Watson, 287 U. v.Co. after discovered trial the fraud court said: 32, 34, Ct. Ed. 77 L. dis- interposition of the decree successful presentation “It essential suit. tribution in the stat points relied on reversal Judgment affirmed. requiring govern rules of court ute and assignments of errors ing the forms of Judge (concurring). WILBUR, Circuit Every ac complied appeal be with. grounds in the In addition to assignment of errors which companied by an sustaining opinion for main particularly each separately shall ‘set out trial on the § 28 U. C. R. S. § error asserted.’ S. that evidence I wish to payments, add Supreme Court Rule 862); (28 § USCA dis- payments made before the decree of 354). en purpose (28 § USCA because, admissible, as we tribution was not opposing counsel, the court as well as able estopped parties hereto are hold, relied on. readily perceive points what question the amount decree of distribution vague general state The substitution of appellee. therein distributed prescribed particularity sets the ment naught. And, as the rule at cited.] [Cases certainty in for convenience and rule makes may, eases, consideration disregard specification generally will, deficient as or otherwise that is so uncertain substantially rule, comply with the CHICAGO & N. W. CO. COMMISSION RY. opposing ques party if raises no even ER OF INTERNAL REVENUE. adequate.” treats it as tion and in the case of Mercantile As was said COMMISSIONER OF INTERNAL REVE 298, 306, Hensey, 205 S. Trust Co. v. U. NUE v. CHICAGO & N. W. RY. CO. Ed. 10 Ann. 51 L. Cas. Ct. S. Nos. 4814. duty part plaintiff 572: “It is Appeals, affirmatively to show that error wa's Circuit Court Seventh Circuit. error May 29, presumed, It is not to be committed. 1933. from a doubtful state will not inferred Rehearing Aug. 9, Denied ment in the record.” effect In addition to the of distribution and of wheth susceptible er or it was to an attack for fraud, parties we that the are bound believe proceedings suit referred to above. It will remem in that suit Emil Lindholm sued bered that $115,000, prayed the administrator for required the latter account for

Case Details

Case Name: Fidelity & Deposit Co. of Maryland v. Lindholm

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 12, 1933

Citation: 66 F.2d 56

Docket Number: 6901

Court Abbreviation: 9th Cir.