Jennings v. Simpson
| Decision Date | 05 April 1882 |
| Citation | 11 N.W. 880,12 Neb. 558 |
| Parties | GEORGE JENNINGS, ET AL., PLAINTIFFS IN ERROR, v. RICHARD D. SIMPSON, ET AL., DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Otoe county. Tried below before POUND, J.
REVERSED AND REMANDED.
S. H Calhoun, for plaintiffs in error, cited on authority of Scofield to appear as attorney, Field v. Gibbs, 1 Pet C. C., 155. Reed v. Pratt, 2 Hill, 64. Insurance Co. v. Oakley, 9 Paige, 496. Grant v White, 6 Cal. 55. Brown v. Nickolls, 42 N.Y. 26. Receiver is officer of court and continues until he is discharged. Edwards on Receivers, 4. Winfield v. Bacon, 24 Barb., 154. Judgments for or against deceased persons are not void on that account. Collins v. Mitchel, 5 Flor., 364. Loring v. Folger, 7 Gray, 505. Coleman v. McAnulty, 16 Mo. 173. Yaple v. Titus, 41 Pa. S., 203. Day v. Hamburg, 1 Browne, 75. Gregory v. Haynes, 21 Cal. 443. Spalding v. Wathen, 7 Bush., 659. Camden v. Robertson, 2 Scam., 508. Sloetzell v. Fullerton, 44 Ill. 108. Case v. Ribelin, 1 J. J. M., 30. Swasey v. Antrim, 24 Ohio S., 87. Powell v. Washington, 15 Ala. 803.
J. L. Mitchell and Frank P. Ireland, for defendants in error.
The order at April term, 1873, was final and conclusive. Embury v. Conner, 3 N.Y. 511. Voorhees v. The Bank, 10 Pet., 449. Noble v. Cope, 50 Penn. State, 17. Wood v. Jackson, 8 Wend. 1. Young v. Black, 7 Cranch, 565. Supervisors v. Briggs, 2 Denio, 33. White v. Coatsworth, 6 N.Y. 113. The jurisdiction of the district court as to the order of April, 1873, had ceased long before the application to modify the same in 1877 was made, and unless that application was made for or on account of one of the grounds or causes set forth in sec. 602 code, the court in that proceeding acted without, and outside of, and beyond its jurisdiction, and such proceeding and the order made therein, is null and void, and may be shown to be so in any collateral or other proceeding in which it is drawn in question. Gilliland v. Sellers' admr., 2 Ohio St. 223. Morse v. Presby, 5 Foster, 299. Eaton v. Badger, 33 N.H. 228. Dicks v. Hatch, 10 Iowa 380. State v. Fodick, 21 La. Ann. 258. Moore v. Ellis, 18 Mich. 77. Damp v. Town of Dane, 29 Wis. 419. As to power of court to render judgment for or against a deceased party, see Lee v. Gardiner, 28 Miss. 521. Norton v. Jamison, 23 La. Ann., 102. McCreery v. Everding, 44 Cal. 286.
It appears from the record in this case that in December, 1870, there was pending in the district court of Cass county an action wherein George Jennings et al. were plaintiffs, and William E. Sheldon et al. were defendants, and in which case the defendant in this action, Richard D. Simpson, was appointed receiver by the court. This action is brought upon the receiver's bond, then given by the said Simpson, the other defendants herein being his securities thereon. It further appears that in April, 1873, the said receiver made to the said court a report, upon which report, after disallowing sundry items thereof, the court found that there was then a balance in said receiver's hands of $ 343.51, which he was ordered to pay over without delay "to T. M. Marquett, one of the counsel for the said Jennings," the said order reciting that the said direction to make such payment to T. M. Marquett was made "with the assent of George Jennings." The said order also recited that the said receiver had commenced sundry actions at law for certain demands growing out of his management of the property in controversy, and in his hands as such receiver, which suits the said receiver was directed to prosecute to final determination, keeping a full and accurate account of all expenditures of money in and about the same. That the consideration of all questions for allowance of compensation for services and expenses connected therewith was postponed to the coming in of a special report upon the cases respectively, etc. It further appears that at a term of said district court of Cass county, held in the year 1877, a motion was brought before said court for the purpose of modifying and correcting the said order so as to include a certain sum of money which it was alleged had been paid to the said receiver and not accounted for by him. That said receiver was not present at said last mentioned term, nor was he personally notified of such proceedings for the reason that he had removed from the state, but that G. B. Scofield was notified thereof as the attorney of the said receiver, and that he being unable to attend procured Geo. S. Smith, an attorney of said court, to attend in his stead, who did appear and took part in said proceedings on behalf of the said receiver, and that thereupon such proceedings were had therein that an order was had and made therein by the said court, requiring the said receiver, within sixty days from the date thereof, to pay into court the sum of eighteen hundred sixty-eight dollars and seventy-two cents. That afterwards, it being discovered that a mistake had been made in the computation of interest, a remititur of one hundred dollars was made from the said amount, leaving the same to stand at $ 1768.72. The said sum, nor any part thereof, having been paid, this action was brought in the district court of Otoe county by the said George Jennings and the legal representatives of Ann Maria Jennings, deceased, against the said receiver and the other defendants as securities on his bond as such receiver, they, the said securities, being residents of said Otoe county. Said cause was tried to the court, which found the issues for, and rendered judgment in favor of the defendants. The plaintiffs bring the cause to this court on error.
The principal if not the only issue of fact presented by the record is, whether G. B. Scofield was the attorney of said receiver, so that a notice or citation could properly be served on him, so as to bind the said receiver by the proceedings had in the said district court of Cass county in 1877. On this point there is a conflict of testimony. But a careful examination leads us to the conclusion that such conflict is rather apparent than real. To reverse the order of the testimony. The defendant, Simpson, in his deposition, testified as follows: In the receiver's account filed in court in April, 1873, there is an item of disbursement of $ 30.00 for "cash paid G. B. Scofield, services as attorney."
On the other hand G. B. Scofield himself in his deposition testified as follows:
Q. Who was the attorney of Richard D. Simpson, as the receiver of Jennings, Sheldon, Bayley and Goodenough?
A. I was his attorney, that is, Simpson's attorney.
Q. Were you present at the court in Cass county, Nebraska, when he made any settlement as such receiver?
A. I was present at every settlement except the last, I think.
Q. You may state the circumstances of Simpson's settlement as receiver?
A. He made several partial settlements from time to time as ordered by the court. The final settlement he delayed making for sometime. Messrs. Calhoun & Croxton, attorneys for George Jennings, served notice upon me as the attorney of Richard D. Simpson, as receiver, to have him make his final report. The motion was heard at the Cass county district court before Hon. S. B. Pound, then judge of said court. The papers of Simpson, as such receiver, with his final statement of account, together with my brief to be used in the argument of the motion for final settlement of Simpson, I sent to Hon. George S. Smith, an attorney of the Cass county bar, requesting him to attend to the case before the court for me, which he did. From some cause, which I do not now remember, I was unable to be present myself, and so got Mr. Smith to attend to the matter for me.
Q. What other attorney, if any, did Richard D. Simpson have or employ for him in connection with his business as receiver?
A. None whatever to my knowledge except myself. I attended to all his business in that respect, both in Cass and Otoe counties, and in all matters where the services of an attorney were required.
S. H. Calhoun, a witness at the trial, testified as follows:
Q. By the court: Do you know he was the attorney?
A. Yes, sir, I know Mr. Scofield was his attorney in the Cass county matter and all other matters.
Q. By ...
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