Maloney v. Terry

• Decision Date: 08 February 1902
• Citation: 66 S.W. 919
• Parties: MALONEY et al. v. TERRY.
• Court: Arkansas Supreme Court

66 S.W. 919

MALONEY et al. v. TERRY.

Supreme Court of Arkansas.

February 8, 1902.

Appeal from chancery court, Pulaski county; Thomas B. Martin, Chancellor.

Action by W. J. Terry, as administrator of the estate of Joseph Townsend, deceased, against E. S. and L. C. Maloney, to declare a trust and for an accounting. From a decree in favor of the plaintiff, the defendants appeal. Affirmed.

Appellee, W. J. Terry, as administrator of the estate of Jos. Townsend, deceased, brought suit in the Pulaski chancery court by bill in equity as follows: "The plaintiff, for his cause of action, alleges: That his intestate, Jos. Townsend, employed E. S. Maloney as an attorney and agent to negotiate a loan of $3,000, and to settle a claim with Sarah Townsend. That he was to settle said claim with the approval of said Jos. Townsend, upon terms most advantageous to him, the said Townsend. That he took a retainer from Sarah Townsend in the same transactions. That the said E. S. Maloney reported to said Jos. Townsend that he could not procure a settlement of the claim of Sarah Townsend for less than $1,850. That he reported to Sarah Townsend that plaintiff would only pay her $1,500. That upon his false and fraudulent representations the said Jos. Townsend agreed to pay him $1,954.50, — $100 for his fee, and the $1,850 for settlement with Sarah Townsend, and $4.50 for revenue stamps, etc. The said Jos. Townsend did pay him said sum of $1,954.50 for said terms, and the said Maloney only paid to the said Sarah Townsend $1,425, claiming that he had only received from said Jos. Townsend $1,500, out of which he reserved the sum of $75 for fees from her, the said Sarah Townsend. That the said E. S. and L. C. Maloney are partners in the practice of law, and were at the date of the transaction herein set forth. That the said E. S. Maloney violated his trust, and speculated upon the rights of plaintiff. That since the date of said transaction Jos. Townsend has departed this life, intestate, and W. J. Terry has been appointed the administrator of said Townsend's estate. Wherefore plaintiff prays that process issue against said defendants, and that this court decree that the said E. S. and L. C. Maloney are trustees, and hold said sum of $450 as trustees for plaintiff, and that they be required to account for and pay the same to the plaintiff; and for all other, proper, and general relief in the premises." The defendants moved to transfer the cause to the Pulaski circuit court because the bill did not state facts within the jurisdiction of a court of equity. The motion was overruled, an answer filed, and the case afterwards heard upon depositions and other written evidence, and decree was entered for the appellee.

Rose & Coleman, for appellants. Blackwood & Williams, for appellee.

WOOD, J. (after stating the facts).

We are asked to reverse only upon the ground that the court had no jurisdiction. The appellants contend that there was a complete and adequate remedy at law, and for that reason the court of chancery should have transferred the cause to the law court. For the purpose of this motion we must look only to the complaint, and treat its allegations as true. It sets up the trust relation, and shows that the money sued for was obtained through fraudulent representations, and was received and is held in a fiduciary capacity. That was sufficient to give the chancery court jurisdiction. Having jurisdiction of the subject-matter, it does not have to give it up because a court of law could also give complete and adequate redress. This court, as early as Bently v. Dillard, 6 Ark. 79, and Hempstead v. Watkins, 6 Ark. 317, 42 Am. Dec. 696, held that: "If a court of law and a court of equity have concurrent jurisdiction over the subject-matter, the party may make his election as to the tribunal which shall determine the controversy, and cannot be compelled to submit to an...