Flournoy v. Bullock

• Decision Date: 01 October 1901
• Citation: 66 P. 547,11 N.M. 87,1901 -NMSC- 016
• Parties: FLOURNOY et al. v. BULLOCK et al.
• Court: New Mexico Supreme Court

66 P. 547

11 N.M. 87, 1901 -NMSC- 016

FLOURNOY et al. v. BULLOCK et al.

Supreme Court of New Mexico

October 1, 1901

Syllabus by the Court.

1. The former decision of this court when this case was last before it, upon substantially the same evidence, is the law of the case, and will not be reviewed.

2. Sections 2947-2949, Comp. Laws 1897, regarding interventions refer solely to actions at law, and not to suits in equity.

3. Where a partnership is thrown into the hands of a receiver in order that its property may be converted into cash and the proceeds divided among its creditors, a simple contract creditor who has no lien on the property cannot intervene in the suit and secure a judgment against the partnership and one of its members, but is relegated to an action at law to secure such judgment, the defendants being entitled to a trial by jury.

Appeal from district court, Bernalillo county; before Justice J. W Crumpacker.

Action by Alfred W. Rice against Bullock, Baker & Co. and others. From the judgment finally rendered against said plaintiff and the sureties on the bond given by him in the intervention proceeding of George W. Champion, they appeal. Reversed.

On March 15, 1894, one Alfred W. Rice, a member of the firm of Bullock, Baker & Co., filed a bill in equity against several defendants, alleging that the property of said firm had been attached for debts due by it and by the firm of Bullock & Baker, of which last firm Rice was not a partner, and asked that an injunction issue restraining the defendants from disposing of the property and assets of Bullock, Baker & Co. to pay the debts of Bullock & Baker; that a receiver be appointed to take possession of all the property and effects of Bullock, Baker & Co., and to collect the accounts and bills receivable due said firm, and to pay the debts due by said firm; that an accounting be had between Bullock, Baker & Co. and Bullock & Baker for the purpose of ascertaining the respective rights of said parties in said property, credits and effects; that a master be appointed, and that the creditors of Bullock, Baker & Co. be permitted to appear in the case for the purpose of establishing their claims before the master; and that the proceeds to be derived from the property, credits, and effects of Bullock, Baker & Co. be first applied to pay the debts of said firm. The bill also alleged that both E. D. Bullock and John W. Baker, his partner, were hopelessly insolvent, and unable to respond towards repaying Rice anything that he might be compelled to pay on account of the indebtedness of said Bullock, Baker & Co. On November 15, 1894, George W. Champion, an employeé filed a petition of intervention in the case, alleging that he was a creditor of the firm of Bullock, Baker & Co. for the sum of $2,823.72 and interest, and that the indebtedness accrued on account of personal labor and services. The intervener further prayed the court for a judgment against the firm of Bullock, Baker & Co. and against Alfred W. Rice for the sum set out in his petition ($2,823.72); and he further asked that the allegations of the bill and the proofs already taken by the master under an order of reference theretofore made might be received and considered by the court in support of the allegations of the petition and of his right to said judgment. On November 30, 1895, there was made an order by consent that the receiver sell all the assets of Bullock, Baker & Co. to one W. B. Giles for the sum of $11,214.80, and that after paying small designated sums to the receiver and master the balance be paid to the receivers of the Albuquerque National Bank and the New Mexico Savings Bank & Trust Company. On December 2, 1895, there was filed a demurrer to the intervening petition of Champion, which was afterwards overruled. On January 8, 1896, there was filed a bond to pay any judgment recovered by Champion in his intervention, which bond was as follows, to wit: "In the District Court, County of Bernalillo, October Term, 1895. Alfred W. Rice vs. John W. Schofield, Receiver, &c., et al. Know all men by these presents, that we, the undersigned, Alfred W. Rice, by W. S. Stambaugh, his attorney and agent, and Andres Romero, Wallace Hesselden, and M. W. Flournoy, as his sureties, are held and bound unto George W. Champion in the sum of $3,500.00, for the payment of which we bind ourselves, our heirs, executors, administrators, and assigns, by these presents. Sealed with our seals and dated this 30th day of November, 1895. The condition of the above obligation is such that whereas, the said George W. Champion has filed his intervening petition in the above-entitled cause as a creditor of the firm of Bullock, Baker & Company, and praying judgment against said firm and against the said Alfred W. Rice; and whereas, the said Champion has consented to the sale of all of the assets of said firm remaining in the hands of the receiver heretofore appointed herein, and to the distribution of the proceeds of such sale among other persons claiming to be creditors of said firm: Now, therefore, if the said Rice shall pay or cause to be paid to the said Champion, his heirs, executors, administrators, and assigns, the full amount which may be by any judgment or decree of said court adjudged in favor of said Champion and against the said firm of Bullock, Baker & Company, or against the said Rice, then this obligation to be void, otherwise to remain in full force; and it is hereby stipulated and agreed that the above-bound sureties of the said Rice are to be taken and considered as in court in said cause the same as if they had been originally made parties thereto so as to be subject to any orders or decrees which may be made by said court in said cause, and are to be considered for the purpose of satisfying any just claim of the said Champion against the said firm or against the said Rice as having in their possession assets of said firm and of said Rice to the amount of $3,500.00. A. W. Rice, by Stambaugh. [Seal.] Andres Romero. [Seal.] Wallace Hesselden. [Seal.] M. W. Flournoy. [Seal.]" Judgment having been given in favor of Champion, execution issued; and on June 23, 1896, the sureties on the bond appeared specially by their attorney, and moved the court to recall the execution and set aside the judgment and decree so far as it affected them, and for grounds of said motion alleged: "(1) That the said moving parties are not, and never were, parties to said cause; (2) that the judgment in said cause is rendered against Bullock, Baker & Co. and Alfred W. Rice only, while the execution is ordered to issue against the moving parties herein, against whom there is no judgment; (3) that the said judgment and decree, so far as it affects the moving parties herein, is not supported by any pleading; (4) that the said court has no jurisdiction over the subject-matter of any suit against said moving parties." On hearing, this motion was overruled, a severance was granted to defendant Rice, and the sureties on the bond appealed to the supreme court, and gave bond for a supersedeas. This appeal was heard in 1898, the case then being entitled Rice v. Schofield, and is reported in 9 N.M. 314, 51 P. 673, and the cause was reversed and remanded. On February 9, 1898, there was filed and entered of record in this cause in the district court of Bernalillo county a judgment upon the mandate of the supreme court in this cause on appeal, and the former judgment entered in the district court was set aside, and the cause was again referred to the standing master and referee for the taking of proofs as to the claim of the intervener, Champion, against the firm of Bullock, Baker & Co. and A. W. Rice. Due notice was given of these hearings, and at the hearing had on May 28, 1898, William B. Childers, Esq., appeared for the defendants. On September 12, 1900, the report of the master was filed in court, and by this report he found that there was due Champion $1,536.24, and recommended that judgment be entered for said sum and costs against Bullock, Baker & Co., Alfred W. Rice, and the sureties on the bond, a copy of which is set out above. Exceptions to this report were filed by both parties, and on November 15, 1900, the judge overruled them, and approved the report of the master, and gave judgment against the firm of Bullock, Baker & Co., Alfred W. Rice, and the sureties on the bond, Andres Romero, Wallace Hesselden, and M. W. Flournoy, for the sum of $1,536.24, with interest thereon at the rate of 6 per cent. per annum from August 31, 1900, and costs, and ordered that execution issue therefor. From this judgment Rice appealed, and the sureties on the bond appeared specially and moved that they might be permitted to unite in the appeal prayed for by Rice, without submitting to the jurisdiction of the court generally. The appeal and motion were granted, and the case is now before us for decision.

William B. Childers, for appellants.

Frank W. Clancy, for appellee Champion.

MILLS C.J.

after stating the facts. This case comes before us in almost the same form as it did before; about the only difference being that the judgment formerly appealed from was for the sum of $2,627.94, while on the rehearing the amount was reduced, the master crediting the defendants with the value of a certain lot conveyed to Champion, so that the amount of the judgment now appealed from is $1,536.24.

1. According to well-settled principles of law, and the decision of this court in the case of Crary v. Field, 61 P 118, the former decision of this court when this case was here before on appeal (Rice v. Schofield, 9 N. M. 314, 51 P. 673), so far as it states the law, is the law of this case, and will not be reviewed by the court on this hearing. In the case of Rice v. Schofield, supra, when...