Woodbine Sav. Bank v. Yager
| Decision Date | 13 December 1932 |
| Docket Number | 6973. |
| Citation | 245 N.W. 917,61 S.D. 1 |
| Parties | WOODBINE SAV. BANK v. YAGER (YAGER, Garnishee). |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Spink County; Frank R. Fisher, Judge.
On rehearing.
Former opinion adhered to.
For former opinion, see 237 N.W. 761.
Sterling Clark & Grigsby, of Redfield, for appellant.
W. H Beckman, of Redfield, and Boyce, Warren & Fairbank, of Sioux Falls, for respondent.
This cause is before us on rehearing. The appellant is the administrator of the estate of Henry Yager, deceased. The plaintiff instituted this action against Ben Yager, an heir of the decedent, and summoned the appellant administrator as garnishee defendant. The trial court made findings and entered judgment for the plaintiff in the garnishment proceedings, and in our former opinion, reported in 237 N.W 761, we granted a reversal with directions to dismiss the proceedings, The respondent now urges that the appellant has no appealable interest and that the appeal should be dismissed. This objection was not presented in the briefs and was not considered by the court. The question is jurisdictional, however, and may be heard for the first time on rehearing.
The right of appeal is statutory. Lingenfelter v. Gehringer, 43 S.D. 275, 178 N.W. 946; National Bank of Commerce v. Jury, 48 S.D. 467, 204 N.W. 945. A party who is not aggrieved by a judgment or order has no right of appeal. Section 3145, Rev. C. 1919; Schlegel v. Sisson, 8 S. D. 476, 66 N.W. 1087; Gales v. Bank of Plankinton, 13 S.D. 622, 84 N.W. 192; Agnew v. Agnew, 52 S.D. 614, 219 N.W. 893; Id., 52 S.D. 472, 218 N.W. 633, 59 A. L. R. 1549.
Service of garnishee summons was made and judgment was entered prior to the allowance of final account of the administrator and entry of decree of distribution in the county court. In our former opinion we held that the liability of a garnishee defendant is determined with reference to the time of the service of the garnishee summons and thereafter until the garnishee defendant makes answer. Section 2461, Rev. C. 1919, requires a garnishee defendant to disclose in his return "whether he was at the time of the service of the garnishee summons, or has since become indebted * * * to the defendant named in the garnishee summons." This provision would indicate that the liability of a garnishee should be determined at the time of the service of summons upon the garnishee and thereafter until answer is made, but upon further consideration we are of the view that section 2470, Rev. C. 1919, is controlling. The liability of the garnishee is determined thereunder as of the time of the service of the summons upon the garnishee defendant.
The trial court did not make its findings of fact and determine such liability as of the time of the service of the garnishee summons, but made such determination upon facts existing at the time of trial. The court found that the garnishee defendant was at the commencement of the action and thereafter the administrator of the estate of the decedent, Henry Yager; that the defendant Ben Yager is an heir of the decedent and entitled to a one-fourth interest in the properties of the estate; that at the time of the service of summons in garnishment the garnishee had in his possession and under his control, as administrator, a tract of land in Spink county, setting forth the description; that all the personal property had been converted into money, stating the amount thereof; that a final report had been submitted; and that the estate was ready to be closed. The court concluded as a matter of law that the garnishee defendant, as administrator, was subject to garnishment, and that the defendant Ben Yager would be entitled to a one-fourth share of the real estate and the cash residue upon the allowance of the final report in the county court; and that such interest of the principal defendant was subject to garnishment and should be applied to the satisfaction of plaintiff's judgment. The judgment directs the garnishee defendant to apply the one-fourth interest of the debtor in the money on hand less such deductions as are allowed by the county court upon hearing the final account of the administrator and directs a sale of the one-fourth interest of the debtor in the real estate. The appeal by the garnishee defendant is from that portion of the judgment which decrees that the garnishee defendant has property of the principal defendant in his possession or under his control consisting of a one-fourth interest in and to the real property of the estate, and which directs that such undivided one-fourth interest be sold at public auction by the sheriff of such county to satisfy the judgment.
It is contended that the garnishee defendant can make no issue of the fact that the court did not determine the liability of the garnishee as of the time of the service of the summons, that the judgment does not affect a substantial right of the garnishee defendant, and that such garnishee cannot appeal from the judgment, however erroneous, since it does not affect his substantial rights. Conceding for the purposes of this appeal that the failure of the trial court to determine liability as of the time of the service of the garnishee summons cannot be urged, we direct our attention to the contention that the rights of the appellant as administrator are unaffected under the judgment. An executor or administrator acts in a representative capacity, and it follows that, if a judgment rendered in an action or proceedings in which he is a party is prejudicial to the interests which it is his duty to protect, he is a party aggrieved within the meaning of the appeal statutes. It is the duty of an administrator to protect and preserve the estate pending settlement for the benefit of the heirs, devisees, or legatees and creditors. With controversies which affect the individual interests alone of those who may be interested in his trust, he has no concern, and cannot be regarded as aggrieved within the meaning of the statute. As illustrative of this, it is the general rule that an executor or administrator has no right to appeal from an order distributing the estate. He does not represent any particular heir, devisee, or legatee, and is not aggrieved if any one of them receives less than he is entitled to under the order of distribution. In re Heydenfeldt's Estate, 117 Cal. 551, 49 P. 713; In re Woods' Estate, 143 Cal. 522, 77 P. 481 and Id., 94 Cal. 566, 29 P. 1108; Estate of Craig, 101 Neb. 439, 163 N.W. 765; In re Dewar's Estate, 10 Mont. 422, 25 P. 1025; Vincent's Estate, 84 Vt. 89, 78 A. 714; Appeal of Stilphen, 100 Me. 146, 60 A. 888, 4 Ann. Cas. 158; Bryant v. Thompson, 128 N.Y. 426, 28 N.E. 522, 13 L. R. A. 745.
This court in the case of Schlegel v. Sisson, supra, cited and relied upon by the respondent, held that executors could not appeal from a judgment, which was rendered upon an appeal from the county court, directing the payment of the proceeds of life insurance to the widow. This holding and the decisions cited therein are reviewed in the case of Agnew v. Agnew, 52 S.D. 614, 219 N.W. 893, wherein this court sustained the right of appeal by an administrator from a judgment awarding a family allowance. The proceedings in Schlegel v. Sisson, supra, were in the nature of a partial distribution of the estate. The executors, creditors and all parties in interest were cited to show cause why an order of the county court for the payment of the proceeds of insurance should not be made. Creditors or other parties in interest did not appeal. All the beneficiaries of the trust administered by the executors, including creditors, having been cited to show cause, could protect their own rights, and it was not the duty of the executors who do not represent any particular beneficiaries to abandon their neutral position. The judgment rendered by a court having jurisdiction was ample protection to the executors.
The final account of the administrator in the instant case was not approved when the findings and judgment were entered, and the estate was not therefore ready for distribution. For all that appears, appeals from disallowed claims might have been taken. There existed the right of appeal from the order of the county court approving the final accounting of the administrator, and the interest of the principal defendant could be defeated by the discovery and establishment of a will. The case is essentially different from that of a contest between claimants to the estate as...
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