79 F. 408 | U.S. Circuit Court for the District of Southern Ohio | 1897
The defendants William Henry Elder and other defendants in possession move the court to outer up judgment against James S. White, Howard Ferris, administrator of Samuel Cooper, deceased, and Hannah Cooper Fewlass, sureties for
On the 19th of October, 1889, James S. White, with Benjamin M. Stewart, signed upon the printed form of cost bond used in this court an obligation as follows: “I hereby acknowledge myself security for costs in this case, on behalf of Robert Eldridge, W. S. Thurston, and Arnold McMahon,”—at the same time qualifying in the sum of $10,000. On the same day he signed another cost bond as follows: “I hereby acknowledge myself security for costs in this case on behalf of Samuel Barr, Robert Barr, et al.” This, also, was signed with Benjamin M. Stewart, and accompanied by an affidavit that he was worth $10,000 in real estate within the jurisdiction of the court, and subject to execution, levy, and sale.
Samuel Cooper, on the 15th of September, 1887, signed a cost bond as follows: “I hereby acknowledge myself security for costs in this case,”—and the same day qualified in the sum of $10,000. Each one of these bonds was under the title and number of the case. Samuel Cooper died on or about the 30th day of August, 1888, intestate and without issue, leaving his widow, Hannah Cooper, now Hannah Cooper Eewlass, his sole heir and distributee. At the time of his death he was owner of a large amount of personal property and real estate in Hamilton county, Ohio. About September 11, 1888, Howard Ferris was duly appointed by the probate, court of said county administrator of his estate, gave bond as required by law, and entered upon the discharge of his duties. He has never resigned or been discharged. All the personal property and real estate of which Samuel Cooper died seised passed into the possession of his widow, now Hannah Cooper Fewlass, and she is still possessed of the real estate. The claim of the moving parties is that the costs secured in this case are a lien upon the estate of Samuel Cooper, including all the real estate of which he died possessed.
James S., White and Benjamin M. Stewart, for. plea to the citations served on them, admit that on the 19th of October, 1889, they became sureties,—on one bond on the cross petition filed at that date by Samuel Barr and Robert Barr et al., and on one bond on the cross petition filed on that date by Robert Eldridge, W. S. Thurston, and Arnold McMahon. They severally aver that their liability under said bonds covers only the actual costs accruing after the date of filing said cross petitions and made thereon, and not for the general costs incurred under the original bill. They also severally aver that the costs taxed and claimed against them embrace large items for which they are in no way liable.
They deny liability for the costs incui*red in the circuit court of appeals, as they did not sign the bonds for appeal in said cause. Further, they severally aver that Robert Eldridge, W. S. Thurston, and Arnold 'McMahon, for whom they became sureties on one of said bonds, live within the jurisdiction of this court, and are solvent; that execution has been issued against them- for said costs, and levied on real estate belonging to them; that Thurston has paid part of the costs for which he is liable, and is able to pay the en-
They further ayer that the complainants on the cross petition of Bamuel Harr and Robert Rarr and others are, or some of them are, solvent, and the costs incurred on said cross petitions can be collected by proceedings against them. They therefore pray that the defendants be required first to exhaust the principals for whom they are sureties before any decree be rendered against them in' this matter, and for other and proper relief in the premises.
Howard Ferris, for plea, to the notice of said motion served upon him, denies that he is administrator of Samuel Cooper, deceased; avers that he ceased so to be on the 23d day of March, 1892, and that on that day the estate was settled, and on the 31st of March, 1892, the costs of the estate were paid, and that he then and from that time ceased to be the administrator of said estate, or to be in any way connected with it; that he fully accounted under the statute as administrator, fully executed his trust, and has no money or property in his hands belonging to the estate, nor has he had at any time since March 23, 1892.
He further pleads that no claim was presented to him for allowance because of costs or otherwise, and that more than four years have elapsed since he gave bond as administrator, and since due notice of Ms appointment as such was given to all parties interested in this case, and that the claim is barred by the statute of limitations.
Hannah Cooper Fewiass, for plea to the notice to her, sets up that the estate of Samuel 'Cooper was long since settled and the property distributed, that no claim concerning the subject-matter of said notice was ever presented to the estate, and that any such claim was long since barred by the statute of limitations. She further pleads that she never signed any such bond, and is not liable thereon, because she denies the jurisdiction of this court to in any way require her to answer or respond by reason of any of the matters set out in the notice, or to in any way authorize or permit any proceedings against her.
Howard Ferris, as administrator, pleads to the notice to surety served on him that he long since ceased to be the administrator of Bamuel Cooper, deceased, having under the statute fully executed Ms trust and accounted for said estate; also, that the claim now made was never presented to him as administrator, and that it was long since barred by the .statute of limitations.
The decree as to costs was entered October 24, 1895, nunc pro tunc as of October 25, 1894, at which date it was ordered. The entire amount is $19,803, of which $3,823.32 are costs in the United States circuit court of appeals, leaving $15,979.08 as the costs of this court Hotices were issued to James S. White on the 8th day of April, 1896, that the motions for judgment would be called up for hearing on Tuesday, tlie 5th of May. 1896. notices to Howard Ferris as administrator, and to Hannah Cooper Fewiass as sole heir of Samuel Cooper and sole distributee of his estate, were issued on the 13th day of April, 1896, that on Tuesday, the 12th day of May, the motions for judgment would be brought on for hearing. Executions were issued against
Coming, then, first, to the case of James S. White, the plea for answer presents—First, the question whether his bonds cover costs accrued before the date of the bonds; second, whether they cover costs on appeal; third, whether they cover costs on the bill; fourth, whether -the moving defendants must first exhaust all remedies against the principals. The decree for costs entered against Samuel Barr et al. on the 24th of October, 1895, amounted to $18,-248.58. The decree for costs against Bobert Eldridge et al., entered the same day, amounted to $18,171.53. That those decrees are conclusive against the sureties as to the fact and the amount of their liability, and as to the questions that might have been raised or made by the principals, is fully attested by the following authorities:
In Moore v. Huntington, 17 Wall. 417, the supreme court said, at page 423, that sureties on an appeal bond, by the act of signing the bond, became voluntary parties to the suit, and thereby subjected themselves to the decree of the court. The general doctrine is stated in Brandt on Suretyship to be that the surety is concluded, in the absence of collusion or fraud, by the judgment against the principal, even as to the amount of the debt. This doctrine was referred to by the supreme court of Ohio in Braiden v. Mercer, 44 Ohio St. 339, 7 N. E. 155, as “an established principle,” and in Walsh v. Miller, 51 Ohio St. 462, 38 N. E. 381, as “the settled law of the state”; the surety being in privity with the principal. It was applied in Sted
The next question is whether the sureties are bound for costs accruing before the date of their bonds. The bonds were signed October 19, 1889. The case was removed from the state court to this court April 5, 1887. The bonds are “for costs in this case.” In Sawyer v. Williams, 72 Fed. 296, where the surety was bound “for costs and fees in” the case, he was held liable, under the rales of the court, upon judgment rendered against his principal for the costs accrued in the state court before the removal, as well as for the costs in the federal court. The cost bond in that case was signed after the removal to the federal court. The rules referred to do not differ in substance, as to the surety, from the rule in this court. In Wilson v. Hudspeth, 3 Dev. 57, the condition of the bond was that the surety should pay “all the costs.” It was held that: he was liable for costs accrued before the date of the bond, as well as those subsequent. The addition of the word “all” makes no material difference. The cost bond includes costs prior to, as well as those subsequent to, the signing of the bond.
Ttye next question is, do the bonds cover costs on the appeal? It was so held in Dunn v. Sutliff, 1 Mich. 24, where it was decided that the surety for costs in the justice’s court was liable for costs in the appellate court. The court said that the surety, when he became such, was fully advised that the judgment of the justice was not conclusive, and that the case might be reviewed upon appeal, which was in (he nature of a new trial; and that the same reasons which required security for costs in the justice’s court applied with equal force to the costs recoverable upon the appeal. So in Robinson v. Plimpton, 25 N. Y. 484, the court of appeals made a similar ruling, citing several prior cases decided in New York. In Smith v. Lockwood, 34 Wis. 72, it was held thai; statutes requiring surety for costs are remedial, and to be liberally construed; also, that a surety for costs in a justice’s court was liable for costs in the circuit court. Keferring to the doctrine that the obligation of the surety is strietissimi
There is no substantial difference between the form of the bond in that case, and the bonds under consideration, for “costs in this case.” The surety must be held liable for the costs upon appeal. The bond in one case is oh behalf of Samuel Barr and Robert Barr et al.; in the other case, on behalf of Robert Eldridge et al. The decree entered against Samuel Barr et al. was for $18,248.58, and the decree against Robert Eldridge et al. for costs was for $18,171.53. These decrees cover in the main the same items, and the decree against White will be in accordance with the decrees’ made against his principals, as above stated.
We come, now, to the case of Samuel Cooper’s estate and of,Mrs. Fewlass. The liability upon the bond given by Samuel Ooope'r, which has already been referred to, did not terminate with his death, but his estate continued to be liable, after his death, for costs which accrued thereafter as well as theretofore. This was decided by the supreme court in Broome v. U. S., 15 How. 143. There the surety upon the bond of a collector in Florida died upon the 24th of July, and the approval of the comptroller was not written upon the bond until the 31st of July. It was held that it was properly left to the jury to ascertain the time when the collector and his sureties parted with the bond, to be sent to Washington, and they were instructed that, before they could find a verdict for the surety, they must be satisfied from the evidence that the bond remained in the hands of the collector, or the surety, until after the 24th of July. In U. S. v. Keiver, 56 Fed. 422, the United States
In Green v. Young, 8 Greenl. 14, it was held that the liability of a surety in a bond conditioned for the official good conduct of a deputy sheriff during his continuance in office extended as well to defaults committed after, as to those committed before, the death of the surety. The court, iu answer to the plea of counsel for the defendant that the liability of the intestate was confined to breaches accruing in-his lifetime, said that that limitation was not to be found in the instrument, that the plaintiff: had the right to repose on the solvency and sufficiency of the surety, and that, if Ms socurity in regard to future breaches ceased upon the death of the surety, he might suffer, however vigilant, because he might incur severe responsibilities arising from subsequent breaches before he could he advised of the death of the surety. In Voris v. State, 47 Ind. 345, it was decided that the estate of a surety upon a guardian’s bond is liable after the death of the guardian which occurred subsequent to the death of the surely. In Moore v. Wallis, 18 Ala. 458, the liability incurred by the surety on a guardianship bond is not discharged by his death, but continues for the full term of the guardianship. In Turquand v. Kirby, L. R. 4 Eq. 123, the question to be decided was, where stock was in the name of a deceased person, but was really the property of another, who was the beneficial owner? It was held that the estate of the deceased was liable for calls subsequent to his death. Lord lion i illy said that it was true that the debt did not exist when the testator died, but in that respect it did not differ from the cases where a testator had in his lifetime become surety for the due performance of a covenant which was broken many years after his death.
It follows from these cases that the liability of Cooper's estate continued after his death. It appears that after his death additional security was given, but there was no step taken towards obtaining the release of the estate from the obligation of the bond, and the surety of the additional stipulation is insolvent. Moreover, he qualified for only half the amount for which Cooper qualified. II: has been held that the court cannot release a surety for costs without the consent of the party for whose benefit he became surety. Holder v. Jones. 7 Ired. 191; Publishing Co. v. Bartlett,, 5 Wkly. Law Bul. 501. It has been repeatedly held that the liability of a surely on a bond given by an employd to secure the faithful discharge of his debts cannot be terminated on notice by executor
It appears from the transcript of proceedings of the probate* court of Hamilton county in the matter of the estate of Samuel Cooper, that the administrator, on the 23d of March, 1892, filed a statement in writing under oath that no assets had ever come into his hands as administrator; that no claim of any kind had ever been presented to him, excepting such as had' been fully paid by Cooper’s widow; also, that, having received no funds as administrator, and having paid out nothing, he filed the statement under oath as his final account as administrator, and for the discharge of his trust. This was supported by the affidavit of Mrs. Fewlass. The filing of that statement was the last thing done in the matter of the estate. The record of proceedings in regard to the estate shows that, excepting the appointment of the administrator, his giving bond and notice, the taking of an inventory of the partnerships in which he was interested, and an inventory of his personal estate, the initiation of proceedings—never completed—to settle the affairs of the partnerships, and the filing of the sworn statement which is designated the “final account,” nothing has been done. The probate court made no order upon the affidavit and statement filed on the 23d of March, 1892. Even if it had made the order for a discharge which was asked, it would have been ineffectual, as was held in Weyer v. Watt, 48 Ohio St. 545, 28 N. E. 670, where the supreme court said that they found no power conferred upon the probate court to discharge an executor or to extinguish his authority as trustee, and that, unless the authority of the executor or adminis-* trator be terminated according to the provisions of the statute, “it is his duty to continue the administration of the estate until it shall be entirely settled.” Further, on the court said:
“Full administration is accomplished only when all the assets have been converted into money, the proceeds applied to the payment of the debts, and the balance, if any, distributed to the legatees or other proper distributees, unless a different disposition of specific property is made by the will.”
In Farran v. Robinson, 17 Ohio St. 242, it was held that:
“Where an administrator has made settlement, believed by him to be final, of the estate of his intestate, and the personalty of the estate has been exhausted in the payment of debts, and of statutory allowances to the widow, and afterwards an action is brought against the administrator on a liability contracted by the intestate, resulting, though contested in good faith and with due diligence, in a judgment against the administrator, such judgment, remaining unreversed and unsatisfied, is conclusive evidence of indebtedness against*417 the estate, and cannot he collaterally impeached for mere error. In such case llie administrator is entitled to an order for the sale of so much of the real estate of which the intestate died seised as may be necessary to satisfy the judgment, although such real estate may have been partitioned among tlie heirs oí the intestate, and by them sold and conveyed wholly or in ptart to purchasers thereof.”
Presentation to the administrator of the claim for costs now sought to be enforced is not necessary, for, when Cooper became surety for costs, he thereby consented to the summary method resorted to in this case of enforcing his liability. Moore v. Huntington, 17 Wall. 417, 422, 423; Johnson v. Elevator Co., 119 U. S. 388-400, 401, 7 Sup. Ct. 254; Sup. Ct. Equity Rule 10; Chappee v. Thomas, 5 Mich. 53, 59, 60; Davidson v. Farrell, 8 Minn. 258, 262— 264 (Gil. 225). Also, for the reason that the surely, by executing the cost bond, became a party to the suit. In Moore v. Huntington, 17 Wall. 422, 423, Mr. Justice Miller, announcing the opinion of the supreme court, said that sureties on appeal and writ of error bonds, by the act of signing the bonds, “become voluntarily parties to the suit, and subject themselves thereby to the decree of the court.” Hee, also, Blossom v. Railroad Co. 1 Wall. 655, 656; Loh v. Judge, 26 Mich. 186-188. It was held in' Mussers Ex’r v. Chase, 29 Ohio St. 577-586, that bringing in the administrator is simply a revival of a pending suit, and prior presentation of a claim to him is unnecessary. Hee 6 Bac. Abr. p. 112 et seq.. and Gordon v. Bank, 6 C. C. A. 125, 56 Fed. 790, 793, for authority that the proceeding is analogous to that of scire facias at common law. In Gager v. Prout, 48 Ohio St. 89, 26 N. E. 1013, additions had been made by the county auditor to the returns for taxation of a deceased person, on notice to the executor, and it was contended that there was no 'valid presentation of the claim by the treasurer to the executor for allowance. As to this the court answered ihat the treasurer to whom the return had been made was not required to formally present the amount of the taxes for allowance before bringing suit for the same.
It is further contended that the claim is barred by the statute of limitations. The statutory limitation for suits against an administrator, excepting in certain cases not pertinent to the question now before the court’, is four years from the giving of bond, provided that any creditor whose cause of action shall accrue or shall have accrued after the expiration of the four years and before the estate is fully administeredmay commence and prosecute such action at any time within one year after the accruing thereof and before such estate shall have been fully administered, “and. no cause of action against any executor or administrator shall be adjudged barred by lapse of that* until the expiration of one year from the time of the accruing thereof.” It lias already been shown that the estate of Samuel Cooper has not yet been fully administered. The cause of action now asserted did not accrue until mote than four years from the giving of bond; that is, not until the decree for costs was entered on October 24, 1895. Until then the liability of the complainants and cross complainants for costs was not ascertained or decreed,
It was proper to make the administrator and the distributee and heir parties to this application. In Moore v. Wallis, 18 Ala. 458, it was held that where a ward, «after the death and distribution of the estate of a surety on a guardian’s bond, obtained a decree against the guardian upon which execution was issued and returned “No property,” a court of equity would entertain jurisdiction of a bill filed by the ward against the personal and legal representatives of the deceased surety to enforce satisfaction of the demand. See, also, Turquand v. Kirby, hereinbefore cited and quoted from. A decree should be entered against the administrator, to be made out of the estate of the decedent.
The legislature of Ohio has provided, by sections 6217, 6218, for judgment in such a case as this against the distributees and heirs, after the settlement of an estate by an executor and administrator, for “an amount not exceeding the value whether of real or personal estate, that he or she shall have received .under the will, or by the distribution of the estate of the deceased.”
The judgment against the administrator would have the same effect, and is the proper proceeding in this case, inasmuch as the estate has not been fully settled, although it has passed into the possession of Mrs. Pewlass as sole heir and distributee.
The contention on her behalf that the estate, is released from liability because Cooper and Nagel (the surety who became such after his death] were joint obligors, and that the death of Cooper terminated his liability at law by reason of the doctrine of survivor-ship, and, further, that, the remedy at law being gone, equity would not afford relief against the surety, has no foundation in law or in fact. They were not joint obligors, and, if they were, the doctrine of survivorship was abolished in Ohio by statute in 1840, and has never since been recognized. Section 210, Swan’s St. Ohio 1841; Burgoyne v. Trust Co., 5 Ohio St. 586.
The further contention that the terms of the obligation, “I hereby acknowledge myself security for costs,” limited the obligation to Cooper’s life, and that, if he had meant to extend its duration be
“Tlie executors or administrators so completely represent tlieir testator or intestate, with respect to the liability above mentioned [bonds, etc.], that eyery bond or covenant or contract oí the deceased includes them, although They are not named in the terms of it: ior the executors or'administrators of every person are implied in ‘himself.’ ”
The language, “hereby hold myself responsible,” was construed, in Lloyd’s v. Harper, cited above, to cover defaults accruing after the surety’s death.
Lastly, it was contended that the moving defendants were hound to exhaust their remedies against the principals before proceeding against the sureties. This proposition was negatived by the supreme court of the United States in Babbitt v. Finn, 101 U. S. 7-14, where a similar contention was made. “Without more, the condition of the bond is a sufficient answer to that defense, as it stipulates that if he, the principal, fails to malte his plea good, the obligors, principal, and sureties shall answer all damages and costs, which is quite enough to show that it was not necessary that an execution should be sued out on the judgment before a right of action would accrue to the judgment creditors to enforce their remedy on the bond. As between the obligors and obligees, all the obligors are principal debtors, though as between each other they may have the rights and remedies resulting from the relation of principal and surety.” In Smith v. Gaines, 98 U. S. 841, the supreme court declared that at common law the sureties on an appeal bond were liable to a suit without the first issuing of an execution against the principal. In Davis v. Patrick, 6 C. C. A. 632, 57 Fed. 909, the circuit court of appeals of the Eighth circuit held that sureties on a supersedeas bond were not entitled to have a suit on the bond stayed until the attached lands of the principal should be sold and such security exhausted. In Woodward v. Peabody, 39 N. H. 189, the supreme court of that state decided that, where a defendant obtains judgment for costs against the plaintiff, the indorser of the plaintiff’s original writ becom.es immediately liable to pay such costs, and scire facias may at once be maintained against him without suing out execution upon the judgment. To the same effect is the ruling in Gaines v. Travis, Abb. Adm. 422, Fed. Cas. No. 5,180. See page 1063, 9 Fed. Cas. There the court said tha t the surety, if admonished or cited by sci. fa., could not. be permitted to invoke prior execution upon the property of Ms principal. In the light of these authorities it must he held that the sureties are liable to judgment without the property of the principal being first exhausted. The judgments will, in the several cases, be for the amount of costs adjudged against the principals.
Buie 9 is as follows:
“Security for costs. In all cases, the clerk shall require an indorser for costs. The following form upon the precipe, or writ, shall he sufficient: T,
A. B., acknowledge myself security, for all costs for which the plaintiff may be liable in this suit.’ And when such costs shall become due, by default or otherwise, a judgment or decree may be entered therefor against the security on motion and ten days’ notice.”