Burton v. Platter

• Decision Date: 27 January 1893
• Docket Number: 140.,118
• Citation: Burton v. Platter, 53 F. 901 (8th Cir. 1893)
• Parties: BURTON et al. v. PLATTER. SAME v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

53 F. 901

BURTON et al. v. PLATTER.

SAME v. SAME.

Nos. 118, 140.

United States Court of Appeals, Eighth Circuit.

January 27, 1893

Statement by SANBORN, Circuit Judge:

In these cases the same parties prosecute a writ of error of error and an appeal to reverse a decree in chancery rendered in a code action for the recovery of specific personal property. The appellee and defendant in error will be called the plaintiff; the appellant and plaintiff in error, Burton the defendant; and all other plaintiffs in error and appellants, interveners.

April 1, 1889, the defendant made an assignment of the property in question to the plaintiff, and delivered its possession to him, to secure the payment of certain creditors of the assignor therein named, whose claims amounted to $9,515.61. The plaintiff employed the defendant as a clerk to assist in disposing of the property, and $2,684.65 had been realized from its sale, and paid over to the secured creditors under the assignment, when the defendant, on August 19, 1889 repudiated it, and held possession of the remainder of the stock of goods for himself. The plaintiff demanded possession of the property, and it was refused. On August 24, 1889, he brought this action for it, and set forth the facts just stated in his complaint. He gave the usual bond for the delivery of the property to himself, and under a proper order from the court, based upon this complaint and bond, the marshal seized the property on August 25, 1889, and on August 28, 1889, the defendant gave a cross bond for the return of the property, and it was redelivered to him. On this cross bond there were six sureties, five of whom are the interveners in this action. On September 5, 1889, these five interveners obtained judgments by confession against the defendant for amounts aggregating about $3,000 issued executions thereon, and the marshal, in October, 1889, seized and sold the property in question thereunder, satisfied the judgments out of the proceeds, and paid over to the defendant a balance of some $2,000. On April 9, 1890, the interveners filed a petition in this action, in which they pleaded these judgments and executions, the sale thereunder, the satisfaction of their judgments from the proceeds, and the payment of the balance by the marshal to the defendant; averred that, in order to induce the marshal to seize this property under the execution, they gave him a bond of indemnity; that the assignment was fraudulent as to them as judgment creditors, and asked that they be made parties to this action; that the assignment be adjudged void as to them, and that their rights and those of the plaintiff and defendant to the property in question be determined in this action. On the same day the defendant filed his answer, which admitted the allegations of the complaint, and alleged that after the draft of the assignment was made, and before it was executed, the plaintiff orally promised that the stock should not be sold out; that he would furnish new goods to keep it up to its general average; that these goods should be paid for out of the proceeds of the sales of the assigned stock, and that he had not kept these oral promises, but had proceeded according to the provisions of the written assignment in executing his trust. The plaintiff demurred to this answer, and his demurrer was, at the final hearing, sustained. On April 9, 1890, on motion of the interveners, the action was transferred to the chancery docket. On November 30, 1890, the plaintiff filed a motion to dismiss the interveners' petition, which was, at the final hearing, denied. On November 30, 1890, all of the parties to the action stipulated that it should be referred to a special master to hear and report the facts and conclusions of law, and the court so ordered. The master heard the proofs, and made a report, to which exceptions were filed. He reported the amount remaining unpaid on the claims of the secured creditors, and that the value of the property was $8,000, and then found that the plaintiff was entitled to judgment for the property, or the value thereof, against the defendant and the sureties on his bond. The defendant and interveners excepted to this finding; their exception was overruled; and, upon the master's report, a decree was rendered that the plaintiff recover from both the defendant and the interveners the amount unpaid on the secured claims, which was $7,815.63, and the costs of the action. No judgment or decree in the alternative for the return of the property, or the payment of the value of plaintiff's special interest in it, was rendered. The cross bond, upon which the interveners' names appeared as sureties for the defendant, was not pleaded or mentioned, nor was any recovery on its account prayed for in any of the pleadings, or sought by any motion in the case, and it was not introduced in evidence. It is assigned as error that the court rendered a decree for the recovery of money against the defendant, Burton, and his sureties, whereas the only judgment or decree it could have lawfully rendered was one against Burton only, and for the return of the property or its value; that the master and the court should have found the assignment to be fraudulent and void as to the interveners; and that it should have overruled the demurrer to the defendant's answer. There are other assignments of error, but their consideration is not necessary to the determination of this case.

J. E. McKeighan, (Lee, McKeighan, Ellis & Priest and F. P. Blair, Jr., on the brief,) for plaintiffs in error and appellants.

L. C. Krauthoff, (Karnes, Holmes & Krauthoff, on the brief,) for defendant in error and appellee.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge.

SANBORN Circuit Judge, (after stating the facts.)

It is a principle that lies at the foundation of all just government that no man shall be deprived of his life, liberty, or property without due process of law. Every disregard of this principle by courts, legislatures, or citizens tends directly towards distrust, insecurity, disorder, and anarchy. It may be difficult, perhaps impracticable, to give a definition of 'due process of law' which would comprehend all cases as they arise, and it is certainly unnecessary to do so. Chancellor Kent says: 'The better and larger definition of 'due process of law' is that it means law in its regular administration through courts of justice.' 2 Kent, Comm. 13. Certain it is that, in judicial proceedings, due process of law must be a course of legal proceedings, according to those rules and forms which have been established for the protection of private rights. It must be one that is appropriate to the case, and just to the parties affected. It must be pursued in the ordinary manner prescribed by the law. It must give to the parties to be affected an opportunity to be heard respecting the justice of the judgment sought. It must be one which hears before it condemns, proceeds upon inquiry, and renders judgment only after trial.

The course of proceedings through which the interveners stand here adjudged to pay over $7,000, on account of an assumed liability as sureties on the cross bond the defendant gave to obtain a return to him of the personal property replevied in this action, was not of this character. The action in its inception was the ordinary code action for the recovery of personal property lawfully taken, but wrongfully detained, now commonly called an 'action of replevin,' though it resembles more nearly the old 'action of detinue.' It was brought by the plaintiff against the defendant, Burton, alone, and the only issue tendered by the complaint when the bond was given, August 28, 1889, was whether the plaintiff or the defendant, Burton, was then entitled to the possession of this personal property.

It is true that the interveners in April, 1890, filed their petition, and became parties to the action, but this was not on account of their possible liability on the cross bond. That was not mentioned in their petition. It was on account of some rights in this property they claimed to have as creditors of the defendant, Burton, and on account of their possible liability on an indemnity bond they had given to the marshal to induce him to seize the property under their executions, some weeks after the cross bond was given. All they sought in their petition was that they might be made parties to the action, that the assignment might be set aside, and 'that the respective rights as to said goods of said Platter, trustee, said Burton, and themselves, be adjudicated in this action. ' The plaintiff demurred to the answer of Burton, and, when the cause went to hearing the only question at issue was, who was entitled to the possession of the personal property at the commencement of the action? Kay v. Noll, 20 Neb. 380, 385, 30 N.W. 269; Loomis v. Youle, 1 Minn. 175, (Gil. 150;) Wells, Repl. Sec. 94. No cause of action upon the bond upon which this judgment against the interveners is founded had been pleaded. No recovery upon it had been asked. Indeed, it had not been mentioned in the pleadings; and only five of the six sureties on it were parties to the action. The entire evidence at the hearing is before us, and the bond was not offered in evidence, nor was it mentioned in the testimony. It is first heard of in these proceedings (after it was filed) in the master's report, filed December 19, 1891, where he finds the value of the property to be $8,000, and that the plaintiff is entitled to judgment against the defendant and the sureties on his bond for said property or its value. It next appears in the decree rendered January 4, 1892, where the court, without rendering any decree in the alternative for the return of the property or its...