Ely v. Ownby

• Decision Date: 31 March 1875
• Parties: DAVID A. ELY, Receiver of JOHN W. OWNBY, Respondent, v. JOHN W. OWNBY, Appellant.
• Court: Missouri Supreme Court

59 Mo. 437

DAVID A. ELY, Receiver of JOHN W. OWNBY, Respondent,

v.JOHN W. OWNBY, Appellant.

Supreme Court of Missouri.

March Term, 1875.

Appeal from Adair Circuit Court.

Harrington & Cover, with D. S. Hooper, for Appellant.

I. The effect of the attachment in the suit of Adair county vs. Ownby was to attach all the property received by Ely. (Wagn. Stat., 185, § 23, clause 5; Id., p. 664, § 4.)

II. Ely could not have received the Reed warrant in any other capacity than that of Receiver. Reed was garnisheed long before the appointment in the case of Reed vs. Ownby. And the suit of Reed v. Ownby was not dismissed till five days after the appointment.

Ellison & Ellison, for Respondent.

I. The Reed warrants were purchased by the sureties with their note prior to the appointment of the receiver, and he is responsible to them for these warrants. As receiver he could only take such warrants as were in the hands of the garnishees. The Chandler, Smith and Ringo warrants were never attached.

NAPTON, Judge, delivered the opinion of the court.

The record in this case is three hundred pages of manucript, containing long accounts, consisting of a multitude of items, a referee's report, which details all the evidence before him, and a statement of the facts which, in his opinion, the evidence established exceptions to this report, and the action of the Circuit Court on the exceptions.

From this manuscript volume we have to gather the facts and the points of exception. It is difficult under such circumstances, and in such an investigation, to feel assured that mistakes have not been committed, especially as to the details; and to determine the propriety of the action of the Circuit Courtin the review of the report of the referee, requires an examination of the testimony upon the points on which the court disregarded the opinion of the referee.

The record begins with a report of Ely as receiver of John W. Ownby, in the case of Adair County vs. John W. Ownby and others. To this report objections are filed on both sides, and ultimately the matter is referred to Mr. Higbee as referee. Mr. Higbee, the referee, reports all the evidence, and then gives his conclusions as to the facts the proof established. His conclusion is that, on the evidence submitted, Ely is chargeable with $10,679.06, and that he ought to be credited with $8,493.50, leaving a balance in his hands of $2,185.56.

To this report exceptions are taken, both by Ownby and Ely, and the Circuit Court, at the instance of Ownby, rejects an item of $990.60, which the referee allowed Ely, and also rejects items allowed against Ely amounting to $2,436.77, and and thereby reduces the amount chargeable to Ely to $729.45.

And then the finding of the court is that in July, 1869, the said Ownby, for the purpose of indemnifying and securing the said Ely and his co-sureties against any liability or expenditure of money on the capture, settlement, etc., of his, said Ownby's, default to the county of Adair and State of M ssouri, assigned and set over to said Ely, under a seal, all the remainder of his assets, of which, after paying all and every expense and liability of said Ely and co-sureties growing out of said Ownby's default and liabilities, the balance, if any, the said Ely shall pay to said Ownby.

The court therefore further orders and adjudges that said Ely, as assignee under the said assignment made in 1869, hold the balance of said funds for the benefit of himself and co-sureties on said Ownby's official bond, and, after paying all just claims of said Ely and his co-sureties, that the balance be paid to Ownby by said Ely.

It appears from the record that Ownby was sheriff and collector of Adair county in July, 1867, and had been for several years before that. He was a defaulter at that date for a large amount due the State, estimated at $14,000, and to the county for an amount supposed to be about $6,000, and he absconded in February, 1867. Ely, and some fifteen or twenty others, were sureties on his official bond. Two of these sureties, Ely and Harlam, pursued Ownby into the Indian Territory, and brought him back to Adair county, incurring thereby a considerable expense.

Suit was instituted on this bond of Ownby as sheriff, and an attachment obtained, and various persons were garnished. Judgment was rendered against Ownby and his sureties, at the May term, 1867, for $6,000, and this judgment was allowed to be satisfied by county warrants. Upon the rendition of this judgment, Ely was appointed receiver, and it was in regard to his report as receiver that a referee was appointed, and the result of the referee's report is as heretofore stated.

It appears that after Ownby's return he was indicted for embezzlement, and whilst this indictment was pending he made an assignment of all his property to Ely. The validity of this assignment was questioned, on the ground that it was fraudulently obtained, but the question of its validity is not involved in this case, and so the referee considered.

Ely and Harlam, another surety of Ownby, went to Jefferson City and there expended a considerable amount of money in procuring a bill releasing Ownby's sureties...