Fidelity & Deposit Co. of Maryland v. Nisbet

• Decision Date: 12 January 1904
• Parties: FIDELITY & DEPOSIT CO. OF MARYLAND v. NISBET, Clerk of Superior Court, et al.
• Court: Georgia Supreme Court

46 S.E. 444

119 Ga. 316

FIDELITY & DEPOSIT CO. OF MARYLAND v. NISBET, Clerk of Superior Court, et al.

Supreme Court of Georgia

January 12, 1904

Syllabus by the Court.

1. Where a plaintiff, in whom the legal right of action existed brought suit for the use of others, who were not named in the petition, but merely indicated therein by reference to a designated decree of the court, and the defendant demurred to the petition upon the ground that the names of the usees did not appear therein, and no copy of the decree referred to was attached thereto, the overruling of the demurrer, if erroneous, was rendered harmless, when the plaintiff during the trial amended the petition by inserting therein the names of the usees.

2. As the petition stated a cause of action in the plaintiff against the defendants, an objection to such an amendment upon the ground that there was not enough in the petition to amend by was without merit.

3. The unanimous decision of this court upon a question of law arising upon a given state of facts is, until reviewed and overruled, a precedent which must be followed in any subsequent case in which the same question is raised upon the same state of facts.

(a) The present case being a suit upon a receiver's bond, by the obligee therein against the principal and surety, and the surety having set up the same defense as that made by the receiver in the case of Tindall v. Nisbet, 39 S.E 450, 113 Ga. 1114, 55 L.R.A. 225, and the facts depended upon to support it being the same as those upon which the receiver relied in that case, it follows that the decision then rendered by this court in the contempt proceeding against the receiver controls the main question presented in the case now in hand.

4. Where evidence is offered and objected to, if it is competent for any purpose it is not erroneous to admit it.

5. There was no error in striking, upon demurrer, so much of an amendment to an answer as was based upon a wholly untenable theory, even though the demurrer did not attack the amendment upon this precise ground.

6. As there was nothing in the defense set up which could prevent any of the usees from entering a retraxit and withdrawing from the case, it was not erroneous to allow one of them to do so.

7. Assignments of error alleging that, for specified reasons the court erred in directing a verdict in favor of the plaintiff, so far as a named usee was concerned, are without merit when there was nothing in the defense set up which could have prevented a recovery by the plaintiff for the benefit of this usee.

If any of these assignments of error was intended to raise the question whether this particular usee was estopped from recovering against the surety upon the receiver's bond, it is sufficient to say that the surety did not plead estoppel against such usee.

8. There was no error in directing a verdict for the plaintiff for the full amount sued for, and, if there was error in directing that the verdict should provide that such amount should be credited with the portion thereof to which the usee who had entered the retraxit would otherwise have been entitled, it was error of which the surety upon the receiver's bond could not complain.

Error from Superior Court, Bibb County; B. D. Evans, Judge.

Action by R. A. Nisbet, clerk of the Bibb superior court, and others, against the Fidelity & Deposit Company of Maryland. Judgment for plaintiffs, and defendant brings error. Affirmed.

Guerry & Hall, for plaintiff in error.

Bacon, Miller & Brunson, C. P. Steed, Hardeman, Davis, Turner & Jones, John P. Ross, John I. Hall, Anderson & Grace, and Dessau, Harris & Harris, for defendants in error.

FISH P.J.

In the view which we take of this case, it is not necessary to determine all the questions raised in the court below, and presented here by the bill of exceptions, nor to state all the facts which are contained in the voluminous record. A full statement of the facts leading up to the present litigation will be found in the report which precedes the opinion in the case of Tindall v. Nisbet, 113 Ga 1114, 39 S.E. 450, 55 L.R.A. 225. The main and controlling question in the case can be reached and decided without passing upon some of the minor questions made in the trial court, and by leaving unconsidered a considerable portion of the evidence for the plaintiff which was admitted over objections of the defendant, who appears as the plaintiff in error here; the consideration thereof being rendered unnecessary by an agreed statement of facts which was introduced in evidence. The facts shown by the record which we deem necessary to an understanding of the decision we now make are as follows: On January 9, 1894, H. C. Tindall was duly appointed permanent receiver for the Macon Hardware Company. In the order of appointment, he was required to make and file in the office of the clerk of the superior court of Bibb county a good and sufficient bond, in the sum of $25,000, conditioned for the faithful performance of his duties as receiver under the order, and such other orders as might be passed in the case; the bond to be approved by such clerk. The order of appointment further provided that the receiver should deposit all moneys coming into his hands in four banks located in the city of Macon, viz., the Exchange Bank, the American National Bank, the Central Georgia Bank, and the Macon Savings Bank; the deposits to be divided among these banks, as near as might be, in the proportion that the amount due by the Macon Hardware Company to each bank bore to the whole sum done by it to all of them, provided that the banks would pay interest upon such deposits, if left for the space of six months, at the rate of five per cent. per annum, and that no checks should be drawn against such deposits, except in the name of the receiver, and countersigned by the judge presiding of the court, except that checks drawn for expenses might be drawn without being so countersigned, but all such checks should specify for what expenses they were drawn. The terms of this order as to the manner in which checks should be drawn against the deposits were reiterated by orders subsequently passed by different judges presiding in the case. Tindall executed this bond, the Fidelity & Deposit Company of Maryland (hereinafter called the Fidelity Company) becoming the surety thereon. On the 25th of March, 1901, Nisbet, as clerk of the superior court of Bibb county, and the obligee in this bond, brought suit thereon against the obligors therein, alleging that Tindall, as receiver, had in his hands, in the administration of his trust, the sum of $26,596.23, and that of this amount he had failed to account for the sum of $6,021.17, which had been adjudged and decreed by the superior court of Bibb county to be in his hands, and that he had failed and refused to account for or to pay this latter sum, although required so to do by the orders and decrees of the court. No answer appears to have been filed by Tindall. In its answer the Fidelity Company denied the right and authority of the plaintiff to bring the suit, denied that the court had lawfully decreed that the plaintiff was entitled to recover any funds in the hands of the receiver, and denied that there were any such funds in the hands of the receiver at the date of the alleged decree of the court, and at the time of the filing of the suit against the receiver. The answer further averred that there had been no accounting properly required of the receiver for the alleged fund, and that there had been no adjudication upon any proper proceedings of any amount or balance as against the receiver, and for such reason no suit could be legally brought against the Fidelity Company upon the bond on account of any alleged default of the receiver. It also denied that there had been any breach of the bond. It further averred that the receiver deposited the funds which came into the hands of the Exchange Bank, the American National Bank, the Central Georgia Bank, and the Macon Savings Bank, all of the city of Macon, dividing his deposits amongst said banks, as near as might be, in the proportions which the amount due by the Macon Hardware Company bore to the whole sum due by it to all of such banks, at interest at 5 per cent. per annum, etc.; that the order of the court expressly provided and commanded that no check should be drawn against such deposits, except in the name of Tindall as receiver, and countersigned by the presiding judge of the court; that the sum of money sued for was composed of portions of the money deposited in such banks, and loaned to them under these provisions of the order of the court, and that none of said sum was ever drawn out or collected of these banks by the court, or by the receiver upon checks signed by him and countersigned by the presiding judge of the court; and that the entire sum sued for was still in the hands of these banks, and still owing to the court, and to the receiver as such, and to the parties at interest in said cause, subject to be checked out or collected under order of the court, as provided in the order of the court. It alleged that the sum sued for, after being deposited in these banks under the order of the court, went into their custody for the court, and for the benefit of the parties at interest, and at the same time went out of the custody of the receiver, and that neither said sum, nor any part thereof, had since then come into the custody of the receiver, as such, and that while said sum was in the custody of these banks the defendant, Fidelity Company, owed the court or the parties at interest no duty concerning the same upon its bond or otherwise; that the banks had never had the legal power to dispose of the same, or any part thereof, or to pay up the...