Sowles v. First Nat. Bank of Plattsburgh

133 F. 846 | U.S. Circuit Court for the District of Vermont | 1904

WHEEEER, District Judge.

This cause has been heard upon a motion for rehearing by the plaintiff because of alleged newly discovered evidence, and of the defendants Sowles for leave to file a cross-bill. The evidence relates to the interest of D. Noyes Burton, as only son and heir in the estate of Oscar A. Burton, which the oratrix might reach under the agreement with the defendant bank that she might have half of what she should collect of him for the bank. What there is that is really new is the entry of a formal settlement of the administrator’s account on consent of Burton in the probate court. The important thing was the interest he had in his father’s estate that could be reached. The inventory of that estate had been on file in that court for years and showed the estate which could have been followed up by the oratrix, as a person interested, in that court, and she could have taken judgment in the suit in the name of the bank, and have levied execution upon the interest of the son as heir. And she could have proved that interest in this case before the testimony was closed by proving the appraisal and calling the administrator. Nothing appears to have been done and no diligence is shown in that behalf. It would be contrary to all principles of due procedure in ending litigation to open the case for further testimony after the oratrix had so long a time in which to collect the judgment against Burton, and so full an opportunity to show that she could have collected more if the bank had not discharged the claim. The administrator was summoned as trustee of Burton, and could have been followed, and compelled to make disclosure under the state procedure in such cases; but nothing appears to have been done in that or any direction from the commencement of the suit, in August, 1895, to the time of the discharge of Burton by the bank, April 1, 1899. The O’Neil farm appears to have been the clearest property to reach which descended to Burton, as sole heir, and could have been levied upon between those dates as well as now; but it was appraised at $10,500, and mortgaged for $7,000, with interest bond running, and it is not clear that much of anything could be realized on execution from it. Besides this, the plaintiff had control of the suit in the state court by her counsel, and that court would, on familiar principles, have protected her rights against any unjust discharge by the bank. And Burton is not a party here, and could not be, for want of diverse citizenship; so he cannot be followed here for any collusion with the bank to defeat the plaintiff’s right.

■ Motions denied, and decree as before directed.