Maddox v. Apperson

• Decision Date: 30 April 1885
• Citation: 82 Tenn. 596
• Parties: S. C. MADDOX, Administrator of Washington Bolton, Deceased, v. E. M. APPERSON, Executor of Wade H. Bolton, Deceased, et al.
• Court: Tennessee Supreme Court

82 Tenn. 596

S. C. MADDOX, Administrator of Washington Bolton, Deceased,

v.E. M. APPERSON, Executor of Wade H. Bolton, Deceased, et al.

Supreme Court of Tennessee.

April Term, 1885.

FROM SHELBY.

Appeal from the Chancery Court at Memphis. W. W. MCDOWELL, Chancellor.FINLAY & PETERS for complainant.

MYERS & SNEED, GANTT & PATTERSON, SMITH & COLLIER, J. B. HEISKELL and WAT. STRONG for defendants.

FREEMAN, J., delivered the opinion of the court.

On the 10th of June, 1868, Sarah W. Bolton, executrix of Washington Bolton, filed her bill in the chancery court at Memphis against Wade H. Bolton and Thomas Dickens, with F. M. Cash, administrator of Isaac Bolton, for a general account of a partnership that had existed from 1850, extended two years in June, 1857, between her husband, Washington Bolton and the two living defendants and the intestate of the other. Wade H. Bolton, after answering the bill, was killed in July, 1869, and the suit was revived and prosecuted against his executor, E. M. Apperson, and the other parties, when in 1870, Dickens was killed and his representative made a party. Such proceedings were had in this case that in 1880, by a decree of this court, the bill was dismissed and the suit finally terminated by a decree to this effect.

That decree was based on two propositions, each of great weight and probably controlling, at any rate when combined, certainly determinative of the case, on settled principles of law. First, that the books exhibited as showing the transaction of the branch houses at Lexington, Kentucky, and Vicksburg, Mississippi, were of such an incomplete character, so unsatisfactory, as to furnish no basis for a settlement of the transactions they referred to. After referring to the fragmentary character of this book at Lexington, showing it to be in many instances merely “brief memoranda, showing shipment or sales of negroes, but not showing to whom sold, or by whom, the date of the sale, nor what was done with the proceeds,” the Chief Justice added: “Besides, this book furnishes intrinsic evidence of being an incomplete statement of the business done by him,” that is, Washington Bolton. The same is said with equal emphasis of I. L. Bolton's book of memoranda, and the accounts of the other parties to the firm. The like conclusion was also reached in reference to the cotton transactions of the firm.

The second ground on which the court acted was the lapse of time after the dissolution of the partnership, the fact that all the parties were dead, and that each, after the dissolution, “had seemingly been satisfied with his share of the whole, which the end of the partnership in June, 1857, left in his hands, retired or engaged in other occupations, and no step was taken until about eleven years after the expiration of the partnership towards having a settlement. It was therefore concluded, that if any one or more of the partners are subjected to loss, it results from their own negligence,” but it is manifest, says the Chief Justice, “that a court of chancery cannot reach any settlement in this case which might not be even more unjust than to leave the parties where they have placed themselves by their own laches.”

In this state of the case, on February 1, 1883, the present bill was filed, claiming to be an “original bill, to impeach this decree for fraud, and in the nature of a bill of review.” It is now in argument treated either as an original bill to impeach the decree for fraud, or as a bill of review to review and set it aside. It is insisted it is sustainable in either aspect. We need but say, that it is not important what the pleading is called, the essential matter is, that it charges a state of facts from which, if proven, the legal result sought will follow, or on which any relief under the general prayer can be granted in a court of chancery. As a matter of course, as a bill of review, there must be certain allegations as to the former case, as to the pleadings, the decree made, and the error found in it--if for error apparent--or if for newly discovered testimony, to show the materiality of the new evidence, and that it would probably change the result before reached; but all this is included under the principle stated--the right sought being a review and reversal of the former decree.

This bill, after stating the fact of the filing of the original bill, that its purpose was a settlement of the partnership matters of the late firm of Bolton, Dickens & Co., in the negro trade and cotton business; that the same proceeded to a hearing upon bill and answers of all the parties and proof, and was decided in the Supreme Court on May 20, 1880, the bill dismissed, each party being taxed with one-fourth of the costs.

The ground of the decision in that case is stated to have been, that the loss of papers, etc., involved the transaction in such obscurity that a settlement would fall short of reaching the truth and doing justice; in other words, the court did not refuse jurisdiction on account of lapse of time or the statute of limitations, but simply because an account could not be properly taken.

The substance of the charges of the original bill are then set out, charging that very large profits had been made, and that one of the partners had shortly before the termination of the partnership, killed one McMillan, and was tried for the offense, and the reason there had been no settlement of the business in the lifetime of the parties was, that Wade Bolton and Isaac, being brothers, insisted that the expenses of this litigation should be paid out of the firm assets, to which the other partners demurred.

It was further charged that the center of business was in Memphis, but large purchases of slaves were made by Dickens from Richmond, Virginia, and Isaac Bolton, at Vicksburg, Mississippi, who sold them; that the funds, capital and profits accumulated in the hands of Wade Bolton, at Memphis, who was the book-keeper and cashier of the firm, charging fraud and unfair dealing upon the part of said Wade. These allegations were, as alleged, the basis on which the account was sought.

The administrator in the present bill now charges, that while the book of the husband of the complainant was filed, showing the purchases in 1855-6-7, she was unable to get at or produce the books kept by Wade H. Bolton, at Memphis, and was thus left to secondary evidence on that portion of the account. It is insisted the proof showed in that case that about $100,000 of the firm assets was used in payments for defense of Isaac Bolton.

It is then charged, in general terms, that Wade H. Bolton had on hand large amounts of firm assets in money, notes, drafts, and while the suit was pending, had evidences of the disposition of these assets which he withheld from the court, and that there were papers in the form of “bills and drafts in the hands of Wade H. Bolton, which he unlawfully suppressed, which, as cashier and bookkeeper, would have made the right of relief plain, and these were suppressed.”

It is then charged, that since the final decree, newly discovered testimony has been found, necessary in that cause, which was fraudulently suppressed and withheld, and which would have made a material difference in the state of the record, and enabled the court to reach a different conclusion.

Somewhat in detail this charge is extended in after parts of the bill, the substance being that Wade H. Bolton, at the time of the suit, had large amounts of the drafts of the firm in his possession drawn by himself, which he had partly destroyed to prevent complainant from getting at them, and these drafts would have shown the state of the firm account, and that his plan of defense was to suppress and obscure the evidence so as to prevent the court being furnished with the basis on which an account could be taken, on the basis of the fraudulent suppression of papers, and that he has now learned he can prove the fact from the deposition of E. M. Apperson, from which he quotes the following: “I have no hesitancy in expressing the opinion that if the other side (meaning complainant) had succeeded in bringing out the facts within my knowledge, derived from Mr. Bolton, and the evidence which came to my possession as his executor, the gigantic lawsuit (meaning the case of said Bolton referred to) would have been decided differently, and Bolton's estate rendered insolvent.”

It is then charged there is no other way to get at this proof except by a discovery from E. M. Apperson, the executor of Wade Bolton, and further, that they verily believe that the bills of sale of all negroes (required by articles of partnership, with the exception of those retained), may be in the hands of said Apperson, together with other papers on which the account can readily be taken and the rights of the parties be adjusted. On this basis a discovery of all he may know is asked of E. M. Apperson, in order to develop the proof assumed to have been fraudulently suppressed, and now claimed to have been newly discovered.

This bill was demurred to on many grounds, and demurrer overruled. In the first aspect of the case, as a bill to set aside the decree for fraud, we notice the questions thus raised by the demurrer, and also on the facts. They are, or part of them, substantially, that the bill does not set out the new testimony assumed to be suppressed, so that the court can judge whether, if made, it would have changed the result in the original case, nor any sufficient reason why Bolton or Apperson were not compelled to file any papers they had, or as witnesses to disclose any facts known by them while that case was pending, and that it was gross negligence on the part of complainant not to have had this evidence before the court.

It is also objected that the discovery from E. M. Apperson might as well have been had in the original case as in the present proceeding, or he might have been used as a witness. Without stating in detail the specific...