Griggs v. Nadeau

• Decision Date: 17 April 1918
• Docket Number: 4972.
• Parties: GRIGGS et al. v. NADEAU.
• Court: U.S. Court of Appeals — Eighth Circuit

250 F. 781

GRIGGS et al. v. NADEAU.

No. 4972.

United States Court of Appeals, Eighth Circuit.

April 17, 1918

Rehearing Denied June 20, 1918.

Edward M. Griggs, of Streator, Ill. (James A. Brown, of Fergus Falls, Minn., on the brief, and Boys, Osborn & Griggs, of Streator, Ill., of counsel), for plaintiffs in error.

F. W Murphy, of Wheaton, Minn., for defendant in error.

Before SANBORN, Circuit Judge, and TRIEBER and YOUMANS, District judges.

YOUMANS District Judge.

The facts in this case are not different from those stated in Griggs v. Nadeau, 221 F. 381, 137 C.C.A. 189. In that case defendant in error had recovered judgment against plaintiffs in error as executors. That judgment was reversed by this court on the ground that the law and testimony did not warrant a judgment against them as executors. It was stated in the opinion that, if the plaintiffs in error were liable at all, they were liable as individuals.

In the case of In re Griggs et al., 227 F. 795, 142 C.C.A 319, this court refused an application for a writ of prohibition or mandamus against the trial judge on the following facts, as stated by Judge Hook:

'One Nadeau commenced an action in a state court of Minnesota against Griggs and Nash individually and as executors of the will of Solomon E. King, deceased, to recover for services in securing a purchaser for lands of the King estate in Minnesota which the will authorized the executors to sell. The cause was removed to the Federal court. The defendants lived in Illinois, the domicile of the testator, but the court had jurisdiction of them, both as individuals and as executors. During the trial a stipulation was made as follows: 'That this action is dismissed as to Clarence Griggs personally, and William W. Nash personally, and that judgment upon any verdict which may be rendered herein in favor of the plaintiff shall be entered against Clarence Griggs and William W. Nash as executors of the estate of Solomon E. King, deceased.'

'A verdict for plaintiff followed, and judgment was accordingly entered against defendants as executors. On a writ of error obtained by them from this court, the judgment was reversed, and the cause was remanded for a new trial. Griggs v. Nadeau, 221 F. 381, 137 C.C.A. 189. It was held that without authority of a statute, the will, or an order of a probate court having jurisdiction, neither of which was shown in the petition, the executors could not bind the estate by such a contract of employment as plaintiff alleged, but his remedy was against his employers individually. When the mandate of this court went down, and after the term at which the stipulation was made and the verdict and judgment were entered, the District Court vacated the stipulation, and ordered that the case stand against the defendants in both capacities, individual and representative. This proceeding is to prevent the court from resuming jurisdiction of defendants as individuals.'

A rehearing on the application for the writ was denied. In re Griggs et al., 233 F. 243, 147 C.C.A. 249.

After the denial of the writ the cause went to trial, and Nadeau recovered judgment against the plaintiffs in error as individuals.

Plaintiffs in error again raise the question of the power of the trial court to set aside the stipulation and to reassume jurisdiction of them as individuals.

The action of the trial judge in refusing to sign and allow a bill of exceptions setting forth the proceedings on the hearing of the motion of the defendant in error to set aside and vacate the stipulation is assigned as error. This refusal occurred on November 17, 1916. Afterwards, on November 18, 1916, the trial of the cause was begun, and terminated in a verdict and judgment for Nadeau on November 21, 1916. On the 18th of April, 1917, the trial judge signed the bill of exceptions of the proceedings of that trial. It was filed on the same day. It does not contain any part of the proceedings relating to the motion to vacate the stipulation. So far as the record discloses, there was no effort on the part of plaintiffs in error to have the proceedings on the hearing of the motion to vacate the stipulation incorporated in the bill of exceptions signed by the trial judge.

But, if the record were in such condition that the action of the court in vacating the stipulation could be reviewed, the question has been determined by the court on the application above referred to by plaintiffs in error for a writ of prohibition or mandamus. Judge Hook, speaking for the court in the opinion above referred to (227 F. 798, 142 C.C.A 322), on that application said: 'Where some defendants are dismissed from a case without prejudice, without judicial determination, or settlement of the cause of action against them, they may be...