Ex parte Farrars

• Decision Date: 24 March 1880
• Docket Number: CASE 836.
• Parties: EX PARTE FARRARS, IN RE GARRETT v. DIAL.
• Court: South Carolina Supreme Court

13 S.C. 254

EX PARTE FARRARS,

IN RE GARRETT v. DIAL.

CASE No. 836.

Supreme Court of South Carolina.

March 24, 1880

1. Where a decree ascertained that certain moneys, with interest, were in the hands of an assignee for the benefit of creditors, and applicable to a debt admitted in the pleadings, and it was referred to the commissioner of the court to add the several sums together, with the interest thereon, and if insufficient to pay such debt to take testimony upon other items of the assignee's account, but the decree did not state the aggregate of the moneys charged nor order payment- Held , that it was not a final money decree.

2. To entitle a decree to rank as a judgment against the assets of one deceased, it must have ascertained a definite sum of money to be due, and ordered its payment; it must be a decree upon which an execution could have been issued. Cases considered .

See Farrar v. Farley , 3 S. C. 11.

Before PRESSLEY, J., Laurens, June, 1879.

S. S Farrar & Bros. obtained a judgment against Joseph Crews April 17th, 1855, for $2417.51, besides interest and costs. But before this judgment was obtained, Crews had made, in January and April, 1855, five assignments for the benefit of his creditors-two to Lewis Dial, two to W. R. Farley and one to Farley & Dial; and, under the last assignment whatever balance was left after paying certain preferred debts, was made applicable to all his other creditors in full or pro rata , who should execute a release of any balance that might be due them. The Farrars came in and accepted its terms. In April, 1859, S. S. Farrar & Bros. filed their bill in the court of equity for Laurens district, against Farley, Crews and Dial, for an account by Farley & Dial of their administration of their trust. The bill stated the amount of the Farrars judgment, with an accurate statement of the interest, and that it remained unsatisfied. Dial and Crews, in their answer, admitted that complainants were judgment creditors for the amount stated in their bill, but denied having funds to pay with. In June, 1859, all matters of account were referred by Chancellor Johnstone to the commissioner. The commissioner reported, and his report, with exceptions by Farrar Bros., and Crews and Dial, came up before Carroll, Chancellor, in June, 1868. Some of the exceptions were sustained and some overruled, and the commissioner was ordered to reform his report as directed; and an inquiry, was ordered, if, upon the calculation of interest and the addition of items ordered by the decree, it was found that there was not enough in Dial's hands to pay the Farrars, and also another small judgment held by one Penn. Such further inquiry was never made, because it was found to be unnecessary, as the calculations made under the directions of the decree showed a balance in Dial's hands more than sufficient to pay these two claims. An appeal was taken by Dial to the Supreme Court, pending which Dial died. See 3 S. C. 11. Upon the dismissal of the appeal, Dial's administratrix, Minerva Dial, was brought in by plaintiffs, and judgment entered up against her as administratrix of Dial, in October, 1877.

Meantime an action had been commenced by Patillo Garrett, administrator, against Minerva Dial, administratrix, and others, for a settlement of Lewis Dial's estate. Creditors were called in, and the attorneys, who represented Farrar Bros. in the first suit, presented the judgment of October, 1877, as a claim against the estate. It was held by the referee to be a simple contract debt against Dial, and this report was confirmed by the Circuit judge, all parties consenting.

Subsequently, J. C. Farrar and C. D. Farrar, survivors of S. S. Farrar & Bros., filed their petition in the case of Garrett v. Dial, alleging that decree of Chancellor Carroll, rendered in 1868, was a final judgment, and should be paid as such out of the assets of Dial's estate; that his lands had been sold under orders in this cause, but that the purchase money was still in the custody of the court-that they had never been parties to this cause, nor had notice of its pendency. Upon this petition, duly sworn to, Hon. W. H. Wallace, judge of Seventh Circuit, granted an order requiring the parties to the record to show cause why the prayer of the petition should not be granted, and restraining the clerk meantime from paying out the funds in his hands. The answer to this petition insisted that the decree of 1868 was not a final judgment; and if it was, that petitioners were estopped by the entry of the judgment of October, 1877, and by the judgment already rendered in this cause.

The decree of the Circuit judge is as follows:

Judge Wallace hitherto, with consent of Simpson & Holmes, as representing Farrar & Bros., ordered a distribution of the funds in this case, then in the custody of the court. That order is now objected to by Farrar & Bros., who came before the court on petition and affidavit, setting forth misunderstanding between them and said attorneys. I think it established that such misunderstanding existed, and that as to such of the fund as remains in court, it should be distributed as if such order had not been passed.

The claim of petitioners presents a very difficult question, on which I find no satisfactory authority, and therefore decide it only because I must.

Joseph Crews assigned his property to Lewis Dial and W. R. Farley for payment of his debts. He owed Farrar & Bros., and in April, 1857, they filed a bill to compel payment against the said assignees. The decree in the case was filed by Chancellor Carroll, in 1868, and affirmed by the appeal court in 1871, but in October, 1870, Lewis Dial died. With the previous report of McGowan, then commissioner in equity, that decree fixed the amount of the debt of Farrar & Bros., and one to T. S. & J. Penn. It settles that all other claims under the assignments had been settled, and that Dial had in hands applicable to the said two unpaid debts, the sums of $2087 profit on land re-sold by him, $719, the price of a slave Alfred, and $120 for his hire before the sale. The opinion of the said Chancellor was ordered to stand as the decree of the court, and Dial was condemned to pay the costs of the case. On the other points the case was recommitted to the said commissioner, and he was ordered to pursue other inquiries as to the liabilities of Dial, in case the assets in his hands, as settled by said decree, should not be sufficient to pay the said debts. Subsequently the commissioner amended his report, and, finding the assets sufficient, did not pursue the inquiries conditionally directed in the decree. The amended report was not acted on by the court during the lifetime of Dial. After his death, on amended proceedings, it was reported on by Silas Johnstone, referee, and confirmed by the court, and thereupon judgment was entered for Farrar & Bros. on October 2d, 1877, for $6220.88 debt, and $285 costs.

Farrar & Bros. now claim that under this decree of Chancellor Carroll their debt, though not a lien, yet ranks as a judgment against Dial's estate under the act of 1879.

I hold under the case of Edwards v. Sanders , 6 S. C. 316, that a decree, though not a lien, may rank as a judgment under the said act.

Furthermore that to the extent of $285, the costs of the case, and $2926, the aggregate of the items decided by Chancellor Carroll, with interest from July 5th, 1856, his said decree is one for the payment of money, and ranks as a judgment against Dial's estate, but that it does not so rank in respect of the additional amounts...