Mills v. Scott

• Decision Date: 28 June 1890
• Citation: 43 F. 452
• Parties: MILLS et al. v. SCOTT et al.
• Court: U.S. District Court — Southern District of Georgia

43 F. 452

MILLS et al. v. SCOTT et al.

United States Circuit Court, S.D. Georgia.

June 28, 1890

Chisholm & Erwin, for complainants.

James Atkins, for defendants.

PARDEE J.

This is a suit commenced August 18, 1877, seeking to enjoin a judgment rendered January 6, 1877, in an action at law that had been instituted in this court in the name of John O Ferroll, ordinary of Chatham county, Ga., for the use of Levi H. B. Scott, against Thomas R. Mills, Jr., as principal, and Thomas R. Mills, Sr., as security, on the bond of said principal, as the administrator of the estate of one George Hall, deceased. The original bill sets forth that certain lands in Spalding county, Ga., which the marshal had at that time levied on and advertised for sale as the property of Thomas R. Mills, Sr., one of the defendants in said judgment, to satisfy the execution issued thereon, are not, and never were, the property of said Thomas R. Mills, Sr., in his own right, but were, in fact, purchased by him with trust funds belonging to his two sons, John B. and James M. Mills, having come into his hands as their trustee from the estates of two deceased persons by the name of John B. Tufts and Louisiana Tufts, and that, therefore, said lots of land were in reality, though in his own name, held by him in trust for his two sons, John B. and James M. Mills; that on January 30 1877, prior to the levy in this case, and before any lien had attached by reason of said judgment, said Thomas R. Mills Sr., had, by deed duly executed and recorded in the proper county, declared the said trust; that the said property was purchased by him with trust funds belonging to said John B. and James M. Mills, and was held by him solely as their trustee, and contracting to convey to said John B. and James M. Mills whenever demanded. Said bill further sets forth that said judgment at law against Thomas R. Mills, Sr., is utterly null and void, and no writ of fieri facias can legally issue thereon, because at the time the said suit was begun which culminated in said judgment, and for two years prior to that time, and all during the progress of said suit and since, the said Thomas R. Mills, Sr., was, had been, and is a resident of the northern district of Georgia, and therefore could not be sued in said southern district, unless found therein, and service of the writ effected upon him personally; that no such service was so effected upon him, and no legal service was effected upon him at any time of said writ; and that said Thomas R. Mills, Sr., never in any way, either in person or by attorney, appeared in said court to answer said writ, nor did he, either in person or by attorney, plead to the same, or take any notice thereof; and, further, that he did not know of any such proceedings in this court. A temporary injunction was granted August 20, 1877. Afterwards one of the defendants filed his answer to said bill. Still later on one of the complainants, Thomas R. Mills, Sr., died; so also did Amos T. Akerman, one of the defendants. Another of the defendants, W. H. Smythe, United States marshal making the levy, went out of office. At a still later time the case was dropped from the docket or dismissed by mistake, but was afterwards reinstated, and the heirs of Thomas R. Mills, Sr., were, after his death, made parties in his stead by proper bill of revivor. Thereafter the pleadings were perfected to ensue joined, and the case came on for hearing. Afterwards, at a hearing commenced January 23, 1888, the defendants objected to the reading of the answers to interrogatories of Thomas R. Mills, Jr., wherein he testifies about the acknowledgment of service indorsed upon the writ in the said action at law, and they moved to exclude them as evidence in the case for lack of allegations in the bill suitable to let them in, and defendants' said motion to exclude said answers to interrogatories appears to have been sustained. Thereupon the complainants moved to amend their bill by inserting at the proper place as follows: That Thomas R. Mills, Sr., never appeared in said suit either in person or by attorney; that he never acknowledged service of the said suit either in person or by attorney; that the acknowledgment of service, which appears indorsed on the declaration in said action of debt on bond, was made without any authority from said Thomas R. Mills, Sr.; that he never ratified the act of Thomas R. Mills, Jr., and never knew anything about it, and about the said action of debt on bond, until the marshal levied the fl. fa. sought to be enjoined.'

The defendants objected to the amendment on the ground that, after issue joined and under the circumstances, it should not be allowed. The court allowed the complainants to file their proposed amendment, subject, however, to the defendants' rights to be heard, before the trial should proceed in opposition thereto. At this state of the case the further hearing was suspended, and the cause continued for the term. The case has now been fully heard, and is submitted upon all the questions of the case.

The first point to be decided is with regard to the amendment allowed by the court in January, 1888. It appears that when the suit...