Gorman v. Stillman

• Decision Date: 21 February 1903
• Citation: 54 A. 934,25 R.I. 55
• Parties: GORMAN v. STILLMAN et al.
• Court: Rhode Island Supreme Court

54 A. 934

25 R.I. 55

GORMAN

v. STILLMAN et al.

Supreme Court of Rhode Island.

Feb. 21, 1903.

Bill by Charles E. Gorman against James W. Stillman and others to establish an equitable lien on a fund in the hands of defendant George W. Stillman as executor. On motion to dismiss for want of jurisdiction. Motion denied.

See 24 R. I. 264, 52 Atl. 1088.

The following is the rescript referred to in the opinion:

"The complainant brings this bill for an order granting to him an equitable lien upon assets in the hands of George G. Stillman, executor of the will of Harriet M. Utter, belonging to the respondent James W. Stillman, who resides out of this state. The complainant was the attorney of James W. Stillman in a contest of the will, which resulted in a compromise. After the services were ended, the latter gave an order to the complainant upon the executor for the sum of five hundred dollars, to be charged to his account, for the services so rendered. This order, so far as appears, not having been accepted by the executor, the complainant brings this bill. The defense is that the complainant did not obey the instructions of his client (said James), whereby the latter got $500 less than he expected to get in the settlement. The agreement of settlement was in writing, submitted to said James, himself a member of the bar, and signed by him. He now says that he did not understand the effect of it. There was testimony that it was explained to him by the complainant, with a statement of figures showing the result. However this may have been, there is no evidence of misrepresentation or unfairness, and the respondent must be presumed to have understood what he signed. The order given after the conclusion of the services must also be taken to have been a contract as to the amount of compensation. There is no evidence to warrant setting it aside. The court therefore decides that the complainant is entitled to an equitable lien upon the fund belonging to said James W. Stillman for the amount of the order."

Argued before STINESS, C. J., and TILLINGHAST and DOUGLAS, JJ.

Charles E. Gorman, for complainant.

James W. Stillman, in pro. per.

TILLINGHAST, J. Upon the trial of this case on the merits, in October last, the court decided that the complainant was entitled to an equitable lien upon the fund in the hands of the respondent George G. Stillman, executor, belonging to the respondent James W. Stillman, for the amount of the order given by the latter to the complainant on the said executor, July 11, 1901, to wit, for the sum of $500. See rescript filed October 24, 1902. The respondent James W. Stillman then moved for a reargument of the cause on various grounds, amongst which were the grounds (1) that the court was without Jurisdiction in the case, for the reason that there was no seizure of the property involved in the suit, and hence it was not a proceeding in rem; (2) that the court was without jurisdiction, because the property sought to be reached by the bill was in custodia legis— that is, under the control of the probate court of Westerly—and therefore not subject to the order of this court; and (3) because no legal service of process had been made upon said respondent in Rhode Island. Upon consideration of all the grounds relied upon in support of said motion for reargument, the court denied the same, whereupon the respondents again moved for the dismissal of said suit on the ground that the court was without jurisdiction therein, and this motion is now before us.

The respondent James W. Stillman, who is a member of this bar, but who resides in Boston, vigorously and persistently contends, in argument and in an elaborate brief, that as the respondents are both nonresidents of this state, and have not been personally served with process in this state, the court has obtained no jurisdiction over them, and hence that the judgment which it has rendered in the case is a nullity. If the jurisdiction of the court depended solely upon the personal service which was made on the respondent James W. Stillman in Massachusetts, we might not question the correctness of the claim now advanced. But it does not. In the first place, it appears both by the bill and answer that at the time the bill was filed there was quite a large sum of money in the hands of the respondent executor in this state belonging to the respondent James W. Stillman. And the bill was brought to obtain an equitable lien on said sum, in order that so much thereof as was necessary to pay the complainant's claim might finally be applied thereto. It also appears that, said George G. Stillman being a nonresident executor, the subpoena issued in the case was served upon Albert B. Crafts, of Westerly, the agent of the executor residing in this state. Under the provisions of Gen. Laws 1890, c. 212, § 45,¹ service of the process upon the agent of the respondent George G. Stillman had the same legal effect as if made on him personally in this state. And of course it goes without saying that, by accepting the office of executor of the will referred to in the former opinion (see 24 R. I. 201, 52 Atl. 1088), the respondent became subject to the laws of this state in the premises.

It further appears that the bill which was filed in court January 25, 1902, contained a motion for a preliminary injunction, and that the subpoena, which was made returnable on ...