Hays v. Comstock-Castle Co.
Decision Date | 01 February 1902 |
Parties | HAYS v. COMSTOCK-CASTLE COMPANY |
Court | Arkansas Supreme Court |
Appeal from Miller Circuit Court in Chancery, JOEL D. CONWAY, Judge.
Reversed.
STATEMENT BY THE COURT.
This action was brought by complaint in equity in the Miller circuit court in the state of Arkansas by the appellees accepting creditors, against the appellants as sureties upon the bond of S. B. Andrews, as assignee of J. C. Whitener executed in the state of Texas.
The complaint charges that their claims were proved, as required by law, against the estate of Whitener in the hands of the said assignee; that they accepted the terms of the assignment, and are entitled to their pro rata share of said estate; that not all the creditors proved their claims against said estate, but some refused to accept said assignment; that the claims of these creditors who did accept and are entitled to share benefits under said assignment amount to $ 24,290; that a large amount of assets, about $ 43,000, came to the hands of said assignee; that, instead of the assignee administering the estate according to law, the assignee sold the same, and squandered the proceeds, and failed to account to any of the creditors for the proceeds of any of said property; and that he conveyed the proceeds to his own use; that they were damaged by the failure of the assignee to properly handle, manage, and administer the proceeds of said estate, according to law, in 50 per cent. of their claims.
The assets, as assigned by the said J. C. Whitener, and delivered to the said S. B. Andrews, as assignee, were as follows:
Merchandise, hardware, furniture, undertaking goods, etc.
$ 18,765 15
Livery stable stock, horses, carriages, harness
4,162 50
Sundry book accounts, notes, etc.
12,287 35
Real estate
6,800 00
Total
$ 43,185 00
The liabilities of the said J. C. Whitener were as follows:
Sundry accounts and notes
$ 38,604 14
Mortgages on real estate
5,580 00
Mortgages on livery stock
3,000 00
Total
$ 43,184 14
The assignment and the bond were made exhibits to the complaint. The complaint further alleged that, by reason of the failure of said assignee to settle with them as stated, they had been damaged 50 per cent. of their respective claims; that said J. C. Whitener and the said defendants have thereby become indebted to them (the plaintiffs), and have become jointly and severally liable to pay them the amount of their damages, respectively. They further stated that S. B. Andrews is a resident of the state of New Hampshire, and cannot be served with process either in this state or the state of Texas.
The defendant filed a demurrer to the complaint on the grounds: "That said plaintiffs do not state facts sufficient to constitute a cause of action: first, that fraud is not specifically set out and charged therein; second, that said complaint is directed against the sureties on principal's bond, without including Andrews himself, the principal in said bond; third, that said Andrews was an officer, qualified, and acting as such, under the law of the state of Texas, and resided in said state at the time, and has never qualified and acted as such under the laws of the state of Arkansas, nor resided in the said state as such; fourth, that said bond is executed to the state of Texas. and said complaint fails to make said state a party, or bring suit in the name of said state for the use of the plaintiff; fifth, that said cause is instituted and prosecuted by individuals out of the jurisdiction of the courts of the state of Texas, and this court has no jurisdiction thereof. The demurrer was overruled, and they excepted.
Defendants then filed the following motion, which was overruled, to which they excepted:
"Come the defendants--G. A. Hays, as administrator of the estate of W. H. McCartney, deceased, B. M. Foreman, as administrator of the estate of J. Deutschman, deceased, H. R. Webster, H. F Briley, and W. B. Kizer,--and move the court for an order on plaintiffs to make their complaint more definite and certain: First, because said plaintiffs charge fraud and misconduct on the part of these defendants' principal, S. B. Andrews, in general terms; second, because said plaintiffs do not allege any particular act of misconduct upon which defendants can make specific answer or denial; third, because said charges are too general, vague, and uncertain for defendants to answer or to take...
To continue reading
Request your trial-
German National Bank of Little Rock v. Young
...be raised by motion. Kirby's Digest, § 6096. The motion could not be considered as a demurrer. The action was transitory. 70 Ark. 151; 103 Id. 151. Holland & Holland and R. W. McFarlane for Appellant had no legal capacity to sue. 79 Ark. 62; 112 Id. 71. OPINION MCCULLOCH, C. J. R. A. Young,......
- Castle v. Hillman