Spoon v. Smith

• Decision Date: 13 September 1892
• Citation: 15 S.E. 800,36 S.C. 588
• Parties: SPOON v. SMITH et al.
• Court: South Carolina Supreme Court

15 S.E. 800

36 S.C. 588

SPOON v. SMITH et al.

Supreme Court of South Carolina

September 13, 1892

Appeal from common pleas circuit court of Laurens county; T. B FRASER, Judge.

Action by John H. Spoon against James M. Smith, as administrator of J. R. Smith, deceased, and J. H. Wharton, as administrator de bonis non of Josiah Anderson, deceased, to recover assets used by J. R. Smith as administrator of Josiah Anderson, deceased. From a judgment in favor of defendant plaintiff appeals. Reversed in part.

W. H Martin, for appellant.

Ferguson & Featherstone and F. P. McGowan, for respondents.

POPE J.

Josiah Anderson executed his sealed note to John H. Spoon on the 19th day of March, 1867, for $330.80, and on the next day thereafter confessed a judgment to J. R. Smith for $1,117.12 which was forth with entered in the court of common pleas for Laurens county, and execution issued. Josiah Anderson died intestate in September, 1867, and in December, thereafter, J R. Smith was appointed the administrator of his estate. In 1869 the sum of $480 from the personal estate of such intestate was applied by J. R. Smith, as his administrator, to the partial payment of the said judgment by confession; and in the same year the sum of $1,273.50 was received by the said J. R. Smith in further payment of his said judgment from the proceeds of the sale of the real estate of said Josiah Anderson, deceased. In 1888, John H. Spoon exhibited his complaint in the court of common pleas for Laurens county against J. R. Smith, as the administrator of the estate of Josiah Anderson, deceased, to recover judgment upon his note for $330.80; and in the answer of J. R. Smith, as such administrator, he alleged that he had fully and finally settled the personal estate of Josiah Anderson, deceased, and that he had no assets in his hands, belonging to the estate of his intestate; and in that action judgment was rendered for plaintiff for the sum of $1,171.95, against the defendant as administrator, subject to the plea of plene administravit. J. R. Smith died intestate in the year 1890, and James M. Smith was appointed administrator of his estate; and in the month of July, 1891, John H. Wharton, by virtue of his office as clerk of court for Laurens, was appointed administrator de bonis non of the personal estate of the said Josiah Anderson, deceased. On the 10th October, 1891, in the court of common pleas for Laurens county, the plaintiff (appellant) instituted his action against James M. Smith, as administrator of the estate of J. R. Smith, deceased, and J. H. Wharton, as administrator de bonis non of the estate of Josiah Anderson, deceased, based upon the foregoing facts, but coupled with allegations of fraud on the part of J. R. Smith and Josiah Anderson in making and settling up the judgment confessed by the latter to the former on the 20th March, 1867; that at that time there was nothing due by Anderson to Smith; that such confession of judgment was intended by the parties thereto to hinder, delay, and defraud existing and subsequent creditors of the said Josiah Anderson, who at that time and ever afterwards was insolvent; and that the sums of money, to wit, the $450 and $1,273.50, received by J. R. Smith in 1869, of the estate, real and personal, of Josiah Anderson, deceased, was not rightfully applied by him to the partial payment of the judgment confessed by Anderson to Smith on the 20th March, 1867. The answer of the defendant Smith denied all these additional allegations as to fraud, etc., and insisted that when Spoon, as plaintiff in the action against J. R. Smith as administrator, etc., of Josiah Anderson, deceased, which ripened into judgment in 1888, accepted Smith's plea, as such administrator, of plene administravit, and entered his judgment accordingly, he was forever afterwards estopped from attacking such plea. By consent of all parties to the action, only two questions raised by the pleadings were heard by Judge FRASER. One was the oral demurrer that the complaint did not state facts sufficient to constitute a cause of action; and the other was whether the plaintiff was estopped from bringing this action by reason of the fact that the judgment sued on was taken in 1888 by the plaintiff against J. R. Smith as administrator, etc., of Josiah Anderson, deceased, subject to the plea of plene administravit; and by the decree of Judge FRASER, dated 16th February, 1892, the oral demurrer was overruled, but the second proposition was sustained, and the complaint was dismissed. From this decree the plaintiff now appeals to this court upon four grounds, to wit: First. Because his honor erred in holding that a judgment rendered subject to the plea of plene administravit is a bar to a subsequent action by the plaintiff for an accounting. Second. Because his honor should have held that the plea of plene administravit, when sustained, is only prima facie conclusive, and is not a bar to a subsequent action to reach assets concealed by fraud or mistake at time of rendition of judgment and unknown to plaintiff. Third. Because his honor erred in holding that the judgment of the said J. R. Smith, confessed to him by Josiah Anderson on March 20, 1867, could have been impeached for fraud under the issue of plene administravit in the action of this plaintiff against J. R. Smith as administrator, when said judgment appeared to be regular on its face. Fourth. Because his honor erred in holding that J. R. Smith, the former administrator of Josiah Anderson, was protected by the plea of plene administravit from accounting for assets of the estate...