Wolff v. Schaeffer

• Decision Date: 09 July 1877
• Citation: 4 Mo.App. 367
• Parties: DOROTHEA WOLFF, Respondent, v. NICHOLAS SCHAEFFER, Appellant.
• Court: Missouri Court of Appeals

4 Mo.App. 367

DOROTHEA WOLFF, Respondent,

v.NICHOLAS SCHAEFFER, Appellant.

St. Louis Court of Appeals, Missouri.

Jul. 9, 1877.

1. The fact that an equitable defence is interposed in an action at law does not make it a proceeding in equity.

2. The interposition of an equitable defence in an action by scire facias against a surety on an administrator's bond, to enforce a judgment against his principal, does not warrant the trial court in refusing the parties a jury to try issues of fact.

3. The surety upon an additional bond of an administrator is liable for the amount of an order of distribution from which there has been no appeal, where the administrator has refused to comply with the order.

4. The surety on an administrator's bond is concluded by, and cannot attack collaterally, a final settlement from which there has been no appeal.

5. The fact that one who signed an administrator's bond as surety was informed at the time by his principal that the bond would be signed by another responsible surety will not release him.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

GEORGE A. MADILL, for appellant: A proceeding by scire facias to enforce against the surety on a bond a judgment against the principal is an action at law.-- Milsap v. Wildman, 5 Mo. 428; Humphrey v. Lundy, 37 Mo. 323; Bently v. Levier, 1 Hempst. 249; Kelly on Scire Facias, 304, 378; The State v. Randolph, 22 Mo. 474, 483. And where issues of fact are raised therein, the parties have a right of trial by jury.-- Bank of Missouri v. Anderson, 1 Mo. 244; Vaughan v. Scade, 30 Mo. 600; Brown v. Railway Co., 37 Mo. 299; The State, etc., v. Paul, 21 Mo. 51; Wag. Stat. 104, sec. 21. The notes of an insolvent administrator, inventoried as assets in his hands, are as the notes of any other insolvent maker. The final settlement did not conclude the sureties.-- McCarty v. Frazier, 62 Mo. 263.

KEHR & TITMANN, for respondent: The liability of a surety on a bond is not affected by the fact that at the time he signed the bond he was told that another would also sign it.-- Moore v. Sandusky, 46 Mo. 380; Cutter v. Whittemore, 10 Mass. 442; Pawling et al. v. The United States, 4 Cranch, 220; The State v. Peck, 53 Me.; The State v. Potter, 63 Mo. 212; The State v. Baker, 4 Cent. L. J. 389. The surety was concluded by the final settlement.-- The State v. Holt, 27 Mo. 340; Taylor v. Hunt's Executor, 34 Mo. 205; The State v. Drury, 36 Mo. 281; The State v. Fields, 52 Mo. 474; McCartney v. Garneau,--Mo. App.--; The State ex rel. v. Rucker, 59 Mo. 17. The assets with which the administrator stood chargeable at the date of the second bond are secured by it.-- Pinkstaff v. The People, 59 Ill. 148; Ennis v. Smith, 14 How. 416. The defence being equitable, the court committed no error in discharging the jury.-- Weil v. Kume, 49 Mo. 158; Freeman v. Wilkerson, 50 Mo. 554; Stillwell v. Kellogg, 14 Wis. 461; Connecticut Ins. Co. v. Cross, 18 Wis. 109; Sands v. Kimback, 27 N. Y. 147; Sheppard v. Steele, 43 N. Y. 52; Woodward v. May, 4 How. (Miss.) 395; Wells v. Caldwell, 1 A. K. Marsh. 441; Creighton v. Johnson, 6 Litt. 240, 241; McCord v. Johnson, 5 Bibb, 431.

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

This was a proceeding on scire facias against appellant, a surety on the bond of Christian Staehlin as executor of Louis Wolff, who was at the time of his death the husband of respondent. Judgment was rendered in the Probate Court for $32,038.32; and, on appeal, and trial anew in the Circuit Court, there was judgment for $27,706, from which defendant appeals.

It appears that Wolff died in 1872, leaving a large estate, consisting of real estate, notes, and cash. His widow was the principal beneficiary under the will. Amongst other assets were two notes of Staehlin, the executor, inventoried at $4,932. Staehlin qualified as executor in August, 1872, and his sureties were Finn, Saler, and Berning. The penalty of this bond was $60,000. The two first-named sureties became insolvent, and, on application of the widow, Staehlin was ordered to give a new bond for $60,000 on or before September 27, 1873. Staehlin applied to defendant, telling him that John Clemans, J. D. Decker, and H. B. Berning, a man reputed to be rich, would be co-sureties with him on the bond; that they had promised to go on the bond. The appellant went to the Probate Court on the last day for executing the bond, and signed it. At that time no names were in the body of the bond, or signed to it. Schaeffer's name was inserted when he signed. When Schaeffer was examined as to his sufficiency, the probate judge was informed, in Schaeffer's presence, that Berning was to execute the bond; upon which the judge remarked that the bond was good enough as it stood, with Schaeffer. The appellant left, satisfied that Berning was also to execute the bond. Berning, however, was not found at home; and the bond was filed, on September 27th, without his name. He afterwards called at the clerk's office of the Probate Court to fulfil his promise, but found the bond already approved, and left without executing it.

At the time of filing the second bond the executor was insolvent. On March 14, 1874, six months before the second bond was filed, an order was made directing the executor to pay to respondent $5,000. The agent of respondent called on appellant, and told him that he would get out an execution against him unless he paid the money required by this order. Thereupon appellant paid $5,000 to the agent, who turned it over to respondent. Of this Staehlin knew nothing; and he made his final settlement in January, 1875, without taking any credit for this payment. This settlement was made a few days after the final discharge of Staehlin in bankruptcy. The item of $30,806 cash, found due on final settlement, was composed partly of the notes of the executor, before mentioned, for $4,832, and partly, also, of other notes which he had sold or otherwise converted to his own use. The agent of respondent, before applying for a scire facias, demanded of Staehlin the whole balance shown by the settlement to be due, though he well knew that $5,000 of the amount had been paid to him on account of the respondent, without the knowledge of the executor, before the settlement was made; and this proceeding was commenced for the balance appearing due by the settlement. It is, however, manifest from the amount of the judgment that the Circuit Court took this payment into consideration, and allowed it to the respondent in its finding. Execution against Staehlin was returned nulla bona, on April 12, 1875.

Appellant offered to show that the notes which constituted the larger part of the cash balance had been converted to his own use by the executor, and were no longer in his hands when the second bond was executed; that the executor was insolvent at the date of the second bond; and that none of the personal property, except the executor's own notes, was then in the executor's hands. This testimony was excluded by the court.

When the cause was called, a jury was empanelled in the Circuit Court without objection; and the trial progressed before the jury, until all the testimony was in and instructions prayed, when the court, of its own motion and against the objections of both parties, discharged the jury, took the cause as submitted, and rendered a decree for plaintiff. This was done on the theory that defendant had raised an equitable defence; that testimony had been admitted under that defence; and that, therefore, the cause was not one in which instructions should be given, or that should be tried by a jury.

The Practice Act provides (Wag. Stat. 1040, sec. 12) that “issues of fact, in an action for recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived or a reference ordered.” The statute of administration provides (Wag. Stat. 109, secs. 13-15) that, when execution against an executor is returned unsatisfied, the creditor may sue out scire facias against one or more of the sureties, requiring him or them to show cause why judgment should not be rendered against him or them for the amount ordered to be paid; and still unsatisfied and that, if good cause to the contrary be not shown, judgment shall be rendered, etc.

The proceeding by scire facias was a well-known common-law action, in which the course of proceedings, after the delivery of the declaration to issue, trial, and judgment, was substantially the same as in any other action. It was and is, however, a settled rule that the defendant in scire facias shall never be allowed to plead any matter which he had opportunity of pleading in the original action; since the object of the proceeding was to give defendant the means of showing, if he can, that some matter has occurred, since judgment, which entitles him to resist the execution. In scire facias sur bond, as is the case before us, there may be, of course, additional defences as to the execution of the bond. When this writ was issued by a chancellor, if, in proceeding with the trial, any question of fact arose, the practice was to deliver the case into the Court of King's Bench, to be proceeded with before a jury. Whilst we have no special statute regulating the practice in cases of scire facias, the proceeding is frequently referred to in the General Statutes, and we know of nothing in our laws, in the decisions of our Supreme Court, in the usual course of practice in the State, or in the nature and reason of the case, which leads us to suppose that a proceeding to recover money by scire facias should not be governed by the same rule, as to the right of a jury to try any issue of fact, which applies to any other action at law. Our Supreme Court treats scire facias as any other suit; and the right to a jury in the proceeding seems never to be doubted. Milsap v. Wildman, 5 Mo. 425; Brown v. Railway Co., 37 Mo. 299; Humphreys v. Lundy, 37 Mo. 323.

This proceeding, then,...