Walsh v. Miller

• Decision Date: 19 June 1894
• Citation: 51 Ohio St. 462,38 N.E. 381
• Parties: WALSH et al. v. MILLER et al.
• Court: Ohio Supreme Court

38 N.E. 381

51 Ohio St. 462

WALSH et al. v. MILLER et al.

Supreme Court of Ohio.

June 19, 1894

[Copyrighted Material Omitted][Copyrighted Material Omitted]

Error to circuit court, Hamilton county.

Action by Q. J. Miller and Gustav Tafel, trustees of the estate of Edward Purcell, under an assignment for benefit of creditors against John B. Mannix, Michael Walsh, and others, on the bond of defendant Mannix as former assignee of such estate commenced in the court of common pleas, and taken on appeal by defendants to the circuit court.There was a judgment affirming the judgment of the court of common pleas in favor of plaintiffs, and defendants other than Mannix bring error.Affirmed.

The petition, which was filed on the 26th day of February, 1890, is as follows: ‘ Plaintiffs say that on the 4th day of March, 1879, said Edward Purcell made an assignment to said John B. Mannix in trust for the benefit of creditors, under the law governing voluntary assignments of insolvent debtors, which assignment the said John B. Mannix accepted; and on the 12th day of March, 1889, the said John B. Mannix duly entered into a bond as such trustee and assignee, with the defendantsJohn Holland, Charles Stewart, and Michael Walsh, and one George Hoadly, as sureties, a copy of which is hereto attached, marked ‘ Exhibit A,’ whereby said defendantsJohn Holland, Charles Stewart, and Michael Walsh, and one George Hoadly, became bound with the said John B. Mannix to the state of Ohio in the sum of two hundred and fifty thousand dollars, subject to the condition in words and figures as follows, to wit: ‘ Now, therefore, we, John B. Mannix, George Hoadly, John Holland, Charles Stewart, and Michael Walsh, undertake and bind ourselves unto the state of Ohio in the sum of two hundred and fifty thousand ($250,000) dollars that the said John B. Mannix will faithfully perform all his duties as such trustee according to law.’And thereupon the said John B. Mannix entered upon the trusts of said assignment, and a large amount of assets came into his hands as such assignee, which he converted to his own use; and he continued as such assignee until the 4th day of January, 1886, when his resignation as such assignee was accepted.(2) That afterwards, on the 13th day of May, 1886, on the settlement of the accounts of the said John B. Mannix, as assignee, as aforesaid, of Edward Purcell, in the probate court of the said county of Hamilton, there was then found by the consideration of said court the sum $305,827.70, with interest from the 4th day of January, 1886, in the hands of the said John B. Mannix, which the said John B. Mannix was ordered and adjudged to pay over according to law to the plaintiffs herein, his successors in the said trust; that thereafter the said George Hoadly, one of the sureties on the said bond, by proceedings in the probate court of Hamilton Co., was released from liability on said bond on the payment of one-fourth of the face of said bond, leaving the remaining sureties on said bond liable for three-fourths of the face of said bond,-that is to say, $187,500; that thereafter the said John B. Mannix and his said sureties, John Holland, Charles Stewart, and Michael Walsh, caused an appeal to be taken to the court of common pleas of Hamilton county, and, after the hearing, order, and judgment in said last-mentioned court, the said John B. Mannix and his said sureties, John Holland, Charles Stewart, and Michael Walsh, took the said case to the circuit court of Hamilton county on error, where, on hearing and consideration, the said circuit court found, after allowing all credits made pending the suit, including the amount paid by George Hoadly, with interest from the time of payment to the 6th day of January, 1890, there was still due from John B. Mannix, as assignee of Edward Purcell, to the estate of Edward Purcell, the sum of $189,975.83, with interest from the 6th day of January, 1890, which amount the said John B. Mannix was ordered and adjudged to pay over according to law to the plaintiffs herein, and that he also pay one-half of the costs in the circuit court, amounting to $5.76, and all the costs in the court of common pleas, which amount to $807.31; and the court further found that by reason of the assignment of certain stocks to George Hoadly, for the benefit of the said sureties, which had been sold, the said sureties were entitled to a credit on their liability for $187,500, in the sum of $17,789.97, leaving an amount chargeable to the said three sureties, John Holland, Charles Stewart, and Michael Walsh, of $169,710.03, with interest from the 6th day of January, 1890.(3)Plaintiffs further say that said John B. Mannix is wholly insolvent, and that he left this state before the said order and finding in the circuit court, and went to the state of California, as plaintiffs are informed, and that he is now, and has been ever since he left this state, beyond the reach of the process of this court.(4) The said probate court duly appointed the plaintiffs herein as trustees of the estate of Edward Purcell, and they were duly qualified and entered upon their duties as such trustees and successors of John B. Mannix, on the 4th day of January, 1886, and have continued ever since to be such trustees, and as such are entitled to receive from the defendants the said several sums of money.(5) That the said John B. Mannix has wholly failed and neglected to pay over to the plaintiffs the said sum so found due from him to the said plaintiffs herein, or any part thereof; and the said sureties, John Holland, Charles Stewart, and Michael Walsh, have wholly failed, refused, and neglected to pay said sum, or any part thereof; and that there is due the plaintiffs herein from the said John B. Mannix, his said sureties, John Holland, Charles Stewart, and Michael Walsh, the said several sums of money so as aforesaid set forth.Wherefore the plaintiffs ask judgment against John B. Mannix, as principal, for $189,597.83, with interest from the 6th day of January, 1890, and for the costs, amounting to $813.07; and they further ask for a judgment against the said John Holland, Charles Stewart, and Michael Walsh for $169,710.03, with interest from the 6th day of January, 1890, and for the costs, amounting to $813.07.'

Mannix was not served with process.Holland demurred to the petition, on the grounds that there was a defect of partiesdefendant, and the petition did not state a cause of action against him.The demurrer was overruled, and the defendants Walsh, Stewart, and Holland filed separate answers, which allege in substance (1) that they were not liable on the bond set out in the petition, because by it they bound themselves only for the faithful performance by Mannix of his duties as trustee of Purcell, when, in fact, Mannix was not the trustee, but was the assignee of Purcell, under a voluntary assignment, and no property of the assignor came to the hands of Mannix as trustee, and therefore he was guilty of no default as trustee; (2) that Purcell had no estate which passed to Mannix, either as trustee or assignee; (3) that the bond sued on was executed by the answering defendants and George Hoadly jointly, as sureties, under an agreement made among themselves that Hoadly should be responsible to the amount of $100,000, and each of the others to the amount of $50,000, only, and that Hoadly had been released from his liability on the bond upon his payment of the one-fourth of its amount, which operated to discharge all of the sureties (4) that since Hoadly was released, the defendant Stewart has become insolvent, and has no property out of which any part of the plaintiff's claim can be collected; and Walsh and Holland allege that neither of them should be held liable upon the bond for an amount exceeding the one-fifth part thereof; and (5) that Hoadly, being a joint surety on the bond, was a necessary party to the action.An additional answer was filed by Walsh and Holland jointly, in which they plead the pendency of another action between the same parties, and for the same cause, when the action below was commenced.By the reply, it is denied that the pending action referred to in the answer was upon the same cause of action, or between the same parties; and a supplemental reply alleges the action had been dismissed.It appears from the bill of exceptions that the plaintiffs, at the trial, gave in evidence, over the objections of the defendants, a certifiec copy of the bond on which the action was brought, which is as follows: ‘ Whereas, by a certain deed of assignment executed by Edward Purcell to John B. Mannix on the 4th day of March, in the year of our Lord one thousand eight hundred and seventy-nine, the said John B. Mannix is appointed trustee for the purposes therein expressed: Now, therefore, we, John B. Mannix, John Holland, George Hoadly, Charles Stewart, and Michael Walsh, undertake and bind ourselves unto the state of Ohio in the sum of ($250,000) two hundred and fifty thousand dollars, that the said John B. Mannix will faithfully perform all his duties as such trustee, according to law.Witness our hands and seals, this 12th day of March, A.D. 1879.Signed and sealed in presence of Dan Herider.John B. Mannix.[Seal.]John Holland.[Seal.]George Hoadly.[Seal.]Charles Stewart.[Seal.]Michael Walsh.[Seal.]’The plaintiffs also gave in evidence, over the defendants' objection, an authenticated copy of the judgment of the circuit court of Hamilton county in the case of Mannix v. Miller and Tafel, as trustees, etc., and of a consent entry made in that case.These documents are as follows: ‘ Circuit Court of Hamilton County, Ohio.John B. Mannix v. I. J. Miller and Gustav Tafel, Trustees of Estate of Edward Purcell.No. 575. This cause coming on...