Logan v. McCahan

102 Iowa 241 | Iowa | 1897

Granger, J.

I. It should be stated at the outset that no one impugns the good faith of the clerk in paying the money to Ed. Morrison. In fact, good faith is conceded. By way of caution, many facts have been brought into the record, most of which we have omitted from our statement, that are unimportant in the consideration of the case. Much importance is attached to the fact of the attachment suit, and that Morrison & McGrath were attorneys therein for Luke Logan. It is the claim of appellant that because of the order of the court that the money should, .be paid to the clerk, and the order for Luke Logan to proceed to collect it, neither Logan nor his attorneys had any right to receive the money from Morrison, nor, after it was paid to the clerk, to take it from him. On the other hand, appellee contends that the suit was one for collection of the money by Logan, who had the right to receive it, and, as Morrison & McGrath were his attorneys, they had the same right, and reliance is placed on sub-division 3 of section 213 of the Code. The section is as to the powers of attorneys, and the third sub-division is as follows: “To receive money claimed by his client in an action or proceeding during the pendency thereof, or afterwards, unless he has been previously discharged by his client, and upon payment thereof, and not otherwise, to discharge the claim, or acknowledge satisfaction of the judgment.” We may set at rest some of the contentions if we treat the case as if Morrison & McGrath had the same power to receive the money as had Logan himself from Morrison; and, had the money been paid by Morrison to Logan on the day it was paid to the clerk, we have no doubt that it would have been such a payment as would have relieved Morrison from further payment. The order to Logan was to “proceed against the said Morrison for the collection of said amount.” We construe that to authorize Logan to collect the money and pay it to the clerk. We think the provision of the statute, as to the power of attorneys, authorized Logan’s attorneys to act for him in so doing, and with like effect. There is no room for doubt that, in any event, the money must be paid to the clerk, under the orders of the court. Nothing in the order to Logan to proceed to collect the money changed the effect of the prior order as to where the money was to be placed. When placed there, the accounts of both executors were closed, and, by operation of law, their future report stood approved. Thereafter neither had authority to proceed as executor, except by order of the court. The legal inference of a final settlement is a cessation of authority to further act in the way of administrative duties. Had the money been paid to the clerk by Morrison upon the order of the court being macle therefor, without any order to Logan to collect ’ it, we think no one would claim that, with the final reports of the executors thus approved, either Logan or Morrison would have had any authority to withdraw it, nor do we think that, under that state of facts, the clerk would have permitted it. It is, then, simply a question of how the attachment suit affects the situation. That does not seem to us a difficult question. The object of the order for Logan to collect, and of the suit in pursuance of it, was to bring the money to the clerk. When the money was in the hands of the clerk, whether placed there by Morrison or by Logan, the order of the court was satisfied. The taking of the money from the clerk was in violation, rather than in pursuance, of the orders of the court. As soon as the money was paid, the authority of Logan and of his attorneys ceased. The taking of the money from the clerk was taking it from the place where Logan and his attorneys were required to place it, if they had it. The power given to attorneys by section 218 of the Code is to enable them to take and place money where it belongs, and not to remove it therefrom. We attach importance to the fact that Morrison himself paid the money into court, taking the receipt of the clerk therefor, indorsed on the order of the court for its payment, and that Morrison intended the money to be applied in final settlement of the estate; and the clerk, in making the indorsement, must have known the purpose of the payment

Much importance is attached to the fact that Logan was, by the order of the court in making the collection, an executor. It is true he was, but it was as to money for which he was not liable. His accounts had been settled. This was money held by Morrison for which Logan, as executor, was not liable. Code, section 2478. After the 'money was in the hands of the clerk, Logan, as executor, had no more right to remove it than had Morrison, who was also executor. The case in this respect is plain. It is further to be said that if this money was delivered because Logan was executor, independent of his duty to collect it under order of the court, then Morrison & McGrath were not his attorneys, and Logan never received the money from them, and is not bound by their acts.

2 II. The point is made that the court had no jurisdiction to try the case in such a summary manner. It does not present a jurisdictional question. Conceding there is a question as to the proper remedy, the defendant, without objection, submitted to the method of adjudication adopted, and the question of the regularity of the procedure cannot be first raised in this court. We think the motion for the order should have been sustained.— Reversed.