Little v. Keaton
| Decision Date | 08 February 1930 |
| Docket Number | No. 145.,145. |
| Citation | 38 F.2d 457 |
| Parties | LITTLE v. KEATON. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John T. Craig, of Pawhuska, Okl. (Frank T. McCoy, of Pawhuska, Okl., on the brief) for appellant.
Robert B. Keenan, of Tulsa, Okl., for appellee.
Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.
This is an appeal from a decree awarding foreclosure of a mortgage in a suit brought on October 4, 1926, by the receiver of the First National Bank, of Barnsdall, Okl., against G. R. Little and H. R. Little, and later revived against Mary E. Little, executrix of G. R. Little's estate.
The first cause of action in the bill was for a recovery on G. R. Little's note for $17,857.50, and the foreclosure of a mortgage securing it on two lots in Barnsdall, Okl. The note was indorsed as being given with the mortgage as security for G. R. Little's obligation to the First National Bank, as provided in a contract of date November 12, 1924, executed by the Barnsdall National Bank, the First National Bank, G. R. Little, H. R. Little, John Javine, Jr., and T. E. Gibson.
The second cause of action was for a money judgment on that contract, less the credit by reason of the note and mortgage. The contract recites that the Barnsdall Bank was in a failing condition and sold three classes of assets to the First National Bank. The first class was called "bad assets" and G. R. Little and the other individuals agreed to pay them, if unpaid by the debtors in 60 days, and succeed to the ownership of those items. The second class was of "doubtful assets," of which G. R. Little guaranteed the payment of four-sevenths and the other individuals one-seventh each, by June 30, 1924. These parties were to give acceptable security for their proportionate share which could not be collected and be relieved from liability, and to make a cash deposit. The third class of assets was accepted without individual liability of these parties. The First National Bank also agreed to buy the Barnsdall Bank property held in trust by H. R. Little for G. R. Little and others, assume a certain debt against the property, and pay the trustee $7,770; and the trustee agreed to convey the property.
The plaintiff at the outset obtained the appointment of a receiver to collect and hold the rents on the mortgaged property, on the ground that it was not worth the mortgage debt. There were numerous other proceedings antedating the decree. We refer to those essential to present the questions raised in the appeal.
On January 4, 1927, the receiver suggested to the court the death of G. R. Little on October 9, 1926, and on his motion for a reviver of the suit against Mary E. Little, his executrix, it was revived, after notice to her and over her objection that the notice was "not entered, made, given, served and returned according to law"; and she excepted. Later she and H. R. Little moved to dismiss the bill for want of jurisdiction over them or the subject-matter of the suit and upon other grounds, and filed a plea in bar and motion to dismiss on the ground that after legal notice to creditors plaintiff's claim was not presented against the estate.
On March 29, 1927, a writ of scire facias was issued by the clerk of the court directed to the marshal of the district, requiring the executrix to show cause why the suit should not be revived against her within twenty days. The return to this writ shows service by Andrew Henderson, deputy marshal, on April 2, 1927, by delivery of a copy to H. R. Little. The executrix again appeared on April 18, 1927, specially for the purpose of the motion to quash the scire facias writ on the two grounds: (1) "That no proper foundation was laid for the issuance thereof," and (2) "that said writ was not executed, issued, served, returned and conditioned as required by law and is wholly insufficient to confer jurisdiction over this movant upon this court."
On May 9, 1927, various orders were made. The motion of the executrix to quash the scire facias writ was overruled, and the cause was again revived against her; and she excepted. The motion of H. R. Little to dismiss the first count of the bill as to him was sustained, and it was dismissed. His motion to dismiss the second count of the bill was overruled. The motion of the executrix to dismiss the bill and her plea in bar as to each count of the bill were overruled; and she excepted. Count 2 was stayed as to H. R. Little, pending his application for a discharge, and he was granted time to plead.
The executrix answered, without waiving her exceptions, interposing as defenses certain denials, the nonpresentation of plaintiff's claim against the estate, and the procurement of the note and mortgage without consideration and by duress. Later, she filed a plea in bar and motion to dismiss the second cause of action on the ground of nonpresentation of plaintiff's claim against the estate, and, after a hearing, that cause of action was dismissed, with prejudice as against her. On her subsequent confession, plaintiff's motion to strike the last paragraph of her answer was sustained.
On June 15, 1929, the executrix moved to discharge the receiver because of the nonpresentation of plaintiff's claim against the estate and his want of right to the funds in the receiver's hands. On the same day, she filed an amended answer, which, aside from formal denials and admissions, contained allegations: (3) That the contract was not presented against the G. R. Little estate and was barred, wherefore the note and mortgage being without consideration apart from the contract were also barred; (4) that the note and mortgage of G. R. Little had been obtained by misrepresentation; (5) and by threats and coercion; (6) that the First National Bank of Barnsdall sued G. R. Little et al. to recover upon the contract exhibited with the bill, the cause being numbered 8363 in the district court of Osage county, Okl., and the cause went to final judgment; that this suit is an attempted splitting of plaintiff's cause of action, and, because the note and mortgage were not pleaded therein, the judgment is res judicata of all matters pleaded in plaintiff's bill and plaintiff is estopped to maintain this suit; (7) that the contract was breached by the failure of the First National Bank to pay the cash consideration of $7,770 provided for in the contract.
On June 19, 1929, plaintiff moved to strike paragraphs 3, 4, 5, and 7, of the amended answer. Further proceedings occurred at a hearing before the court. The contract, the probate proceedings, and the pleadings in said cause No. 8363 were admitted, as also the last paragraph of plaintiff's above motion, wherein he asserted that in the cause No. 8363 a motion of the defendants for a directed verdict, because the petition failed to state a cause of action, because the plaintiff endeavored to split his cause of action, and because of the insufficiency of his evidence, was overruled. It was further admitted that the judgment in that case was affirmed by a decision of the state Supreme Court (Barnsdall Nat. Bank v. Dykes) reported in 136 Okl. 226, 277 P. 219. Another admission of the defendant was that there was no dispute about the amount due on the note in suit. The plaintiff's motion to strike the paragraphs of the amended answer was sustained, and the executrix excepted.
On July 1, 1929, a formal decree was entered foreclosing the mortgage to satisfy a total debt on the note of $19,643.25. The court denied the motion to discharge the receiver, on the ground that the estate of G. R. Little was insolvent and the property was insufficient to satisfy the mortgage debt, and the receiver was directed to conserve all funds for application upon the debt, but ordered that any claim for deficiency after foreclosure was barred against the estate of G. R. Little.
The errors urged on the appeal are: (1) That the district court had no jurisdiction over the executrix as no scire facias was served upon her. (2) That the...
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