Park v. Park, 10022.

• Decision Date: 12 November 1941
• Docket Number: No. 10022.,10022.
• Parties: PARK et al. v. PARK et al.
• Court: U.S. Court of Appeals — Fifth Circuit

123 F.2d 370 (1941)

PARK et al. v. PARK et al.

No. 10022.

Circuit Court of Appeals, Fifth Circuit.

November 12, 1941.

Reuben R. Arnold and B. P. Gambrell, both of Atlanta, Ga., and L. P. Goodrich, of Griffin, Ga., for appellants.

Leonard Haas, of Atlanta, Ga., and Harvey J. Kennedy, of Barnesville, Ga., for appellees.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was by appellees against their guardian and his sureties to recover $13,580.59,¹ notwithstanding releases given him by them after their majority, and his discharge by judgments of the Court of Ordinary. The claim was that the releases and the discharges were procured by fraud.

Urging that the suit was a collateral attack upon the judgment of a probate court, defendants moved to dismiss it for want of jurisdiction. For their defenses to the merits, they set up; the releases and the judgments of the Court of Ordinary; specifically and fully denied the charges of fraud and concealment; and pleaded that the estate had been fully and fairly administered; that full and fair settlement upon a full and fair accounting had been made; and that this was not the Court nor the occasion to demand another accounting.

The motion to dismiss was denied, D.C., 37 F.Supp. 185, and upon defendant's demand there was a trial to a jury, with a verdict and judgment for plaintiffs for $5,000. Defendants are here urging as reversible error, the denial of their motion to dismiss and the giving and refusal of charges, and insisting that the judgment may not stand because the verdict was without support in the evidence. No attempt is made in the briefs of the parties to draw any distinction between the right of plaintiffs to maintain this kind of suit against Park, and their right to maintain it against his sureties. We will therefore, since the judgment is to be reversed, not attempt to draw any, but will treat the suit as though it had been brought against Park alone, and the reversal will be without prejudice to the rights of the sureties if they are so minded to again present their motion to dismiss.

Treating the case as one brought against Park, we cannot agree that denial of the motion to dismiss for want of jurisdiction was error. Neither the ground, that the suit was one to administer the guardianship and therefore exclusively one for the Court of Ordinary, nor the ground that the suit was a collateral attack upon the judgment of the state court, was well taken. There are some broad allegations and prayers in the petition which give color to appellant's claim, that the suit is one for a full accounting and final settlement with the guardian and covers "exactly the function of the Court of Ordinary", Robinson v. Georgia Bank & Trust Co., 5 Cir., 106 F.2d 944, 948, and that it is therefore not a suit maintainable in the federal court. Construed as a whole however, the pleading asks no more than was asked in Payne v. Hook, 7 Wall. 425, 19 L.Ed. 260; Arrowsmith v. Gleason, 129 U.S. 86, 101, 9 S.Ct. 237, 32 L.Ed. 630; Edenborn v. Wigton, 5 Cir., 74 F.2d 374 and cases cited therein. In short, paraphrasing what we said in the Edenborn case, the suit is not a suit "controlling, supervising or annulling proceedings of a state court, it is a personal suit in which the federal court scrutinizing the conduct of defendant, will, if it finds that he has been guilty of fraud or imposition in obtaining the decree and the instruments of transfer or settlement he relies on, deprive him of the benefits of them and of any inequitable advantage he has derived under them."

On the second ground, that the suit is one to set aside a judgment for intrinsic rather than extrinsic fraud, and therefore not maintainable, appellant stands no better. For putting aside the question whether the ruling of the Throckmorton case, United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93, has not been sometimes too rigidly followed, in the face of Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870; Cf. Publicker v. Shallcross, 3 Cir., 106 F.2d 949, 126 A.L.R. 386, the claim fails here because if there was any fraud in obtaining the judgments, it was fraud extrinsic of them. The judgment in the case of each ward was based on the release given by the ward and if there was fraud in obtaining the release, this fraud was certainly extrinsic to the judgments.

We think it clear however, that though the jurisdictional point is not well taken, the judgment must be reversed for errors in the submission to the jury. Of these one of the most fundamental and far reaching, was the submission of the issue of fraud. The suit was brought on allegations of actual fraud of their guardian, in concealing the true state of the affairs of his wards, for the purpose of obtaining releases from them and judgments discharging him. Appellants, in appropriate charges, requested the submission of the issue of fraud thus raised, and by objection to the main charge, sought to prevent the submission of the issue of constructive fraud, as the court charged it, "any act of omission or commission contrary to legal or equitable duty, to the injury of another, where actual fraud implies moral guilt, constructive fraud may exist where there is moral innocence." Refusing defendants' charges and overruling their objections to the main charge, the district judge, instead of submitting to the jury, the issue, the pleadings made, whether there was actual fraud in procuring the releases and the judgments, submitted the cause to them as in effect a suit for an accounting, liability depending not on fraud but upon the exact state of the accounts. Thus, the issue of the suit was made to turn not upon whether the jury found that their guardian had actually defrauded them but upon whether the jury found that there was money due the wards on an accounting, and this, wholly without regard to the bona fides or honest intent of the guardian in accounting to and settling with them. This, as we understand the law generally, will not do when the suit is, as here, not one...