141 F.2d 282 | D.C. Cir. | 1944
These are appeals from a summary judgment. Ellwood P. Morey was formerly receiver of Arnold & Company, the maker of two collateral -trust agreements both of which were in default. After Morey’s death his executrix filed his final account and the District Court’s auditor filed a report in which he “stated” the account. On July 2, 1942, the District Court confirmed the auditor’s report, except that the court disallowed, to the extent of $750, fees which the receiver had paid to himself and his attorney and which the auditor had approved. Appellee, as substitute receiver of Arnold & Company, was a party
Appellee afterwards filed the present motion for summary judgment for $4,714. 42 against appellant Mary B. Morey, as executrix of the former receiver, and against appellant United States Fidelity & Guaranty Company as surety on his bond. Appellee alleged that the auditor had found a “cash deficit” of $3,964.42 to be “due on the account of the former receiver.” That sum, together with the disallowed fees of $750, made up the $4,714.42 which appellee claimed. The answers of appellants denied that the auditor or .the court had found that $3,964.42 or any other sum was due from the former receiver, and denied that any sum was in fact due. Appellant surety did not deny that fees of $750 had been paid and disallowed, but attacked the validity of the disallowance. The District Court gave summary judgment against appellants for appellee’s entire claim, $4,714.42. This appeal followed.
Since no appeal was taken from the order of July 2, 1942, it is binding as res judicata.
Although the auditor used, in respect to one of the two trusts in the receiver’s hands, the term “cash deficit,” we think he did not use that term in a sense which implied that the former receiver owed money to the receivership. The auditor found that the former receiver had expended on behalf of the “A” trust more than he had received on behalf of that trust. In respect to that trust, accordingly, the sums with which the auditor credited the former receiver exceeded the sums with which the auditor charged him. Analysis of the auditor’s report shows that $3,964.42, which he labeled “cash deficit”, is merely the amount of this difference.
However, it appears from the auditor’s report as a whole that this $3,964.42, instead of being owed by the receivership to the former receiver, was owed by the A trust to the B trust. The auditor found that, in respect to the B trust, the former receiver took in $6,871.10 more than he paid out. Of this balance of $6,871.10, $2,732.63 was turned over to the appellee, as substitute receiver, in cash and $180 in another form. The remainder of the $6,871.10 “balance” in the B account, $3,-958.47, is practically identical with the “deficit” of $3,964.42 in the A account. The auditor stated that this remainder of the funds of the B trust ($3,958.47) was “expended by the former receiver in the administration of the Series 'A’ Trust.”
Affirmed in part
Reversed in part.
Smith v. Law, 56 App.D.C. 86, 10 F.2d 651.
Payments credited to the former receiver as chargeable solely to the A trust totaled $10,144.16. In addition the auditor credited the receiver, in respect to the A trust, with two-fifths of certain payments made by the receiver which were chargeable in part to the A trust and in part to the larger B trust. This credit amounted to $2,062.32. The sum of $10,144.16 and $2,062.32 is $12,206.-48. Sums realized by the receiver, and accordingly charged to him, in connection with the A trust totaled $8,242.06. The “cash ■ deficit” of $3,964.42 is the difference between $12,206.48 and $8,242.06.
He also stated that the “deficit” of $3,964.42 in the A trust was “created by the former receiver in the expectation that the sale of the Series ‘A’ Trust assets would provide sufficient cash to enable him to reimburse to the Series ‘B’ Trust the sums belonging to it.”