First Nat. Bank of Albuquerque v. Dunbar

PARKER, C. J. The appellee, hereinafter styled plaintiff, filed its amended complaint against the appellant Dunbar, as executor, and the appellant Fidelity & Deposit Company of Maryland, as surety upon his executor's bond, hereinafter styled defendants. It appears that plaintiff presented a claim against the estate, which claim was allowed and ordered paid in due course of administration. Thereafter the defendant Dunbar filed in the(probate court his final report of his doings as such executor, and in said report falsely represented to said probate court that said claim of plaintiff had been paid in full, whereas, in truth and in fact, nothing had been paid upon said claim. Thereupon said Dunbar procured said probate court to fix May 24, 1919, as the time for the hearing and considering of said final report. Said Dunbar gave notice of such time for hearing and considering said final report by posting on the front door of the county courthouse of Bernalillo county a notice of the same. On said May 24, said Dunbar procured from the probate court an order approving the said final report and directing him to ‘‘distribute all balance remaining in his hands pro rata among such claimants as appeared by the said report to have been approved by this court and to remain unpaid.” Dunbar then distributed the funds among the creditors of the estate, excluding the plaintiff from any participation therein. Plaintiff prayed that an accounting be had of and concerning the assets of said estate and the expenditures made by said Dunbar as such executor, and the amount of fees justly due him, and the amount of claims subject to payment, and the pro rata share or amount which should be paid to the plaintiff, and prayed for a judgment against both defendants in such amount as the court finds is rightfully due the plaintiff, and for judgment over against the defendant Dunbar for such amount as may be payable in excess of the penalty of said bond, and for general equitable relief. Defendants demurred to the complaint, upon the ground that the same failed to state facts sufficient to constitute a cause of action against them, and that it appeared upon the face of the amended complaint that the court had no jurisdiction of the subject-matter of the action. The court overruled this demurrer, and the defendants answered the bill of complaint, to which answer a reply was filed. A trial- was had before the court, and a judgment was awarded the plaintiff, to the effect that the order of distribution above mentioned was void and of no effect as against the plaintiff, and that the plaintiff have and recover from the defendants the sum of $1,123.27, together with interest. The defendants have brought the case here by appeal. The original complaint was filed in this case on June 19,1919, which was 25 days subseuent to the order of the probate court approving the executor’s final report and making the order of distribution. At that time the plaintiff had the right of appeal to the district court. A trial de novo could have been had in the district court, and the correctness of the judgment, approving the final report and ordering distribution, could have been there reviewed. See chapter 99, Laws 1915., It is apparent that the plaintiff had an adequate and complete remedy at law by appeal at the time this suit was instituted. The district court, upon such an appeal, had power to vacate and set aside the order approving the executor's final report and making distribution of the assets of the estate, and to order him .to make a pro rata distribution to all of the creditors, including the plaintiff, which is all of the relief to which the plaintiff was entitled. It is a fundamental principle that courts of equity have no jurisdiction to entertain a cause of acto n where there exists at the time an adequate and complete remedy at law. 1 Pom. Eq. Juris. (4th Ed.) §§ 222, 178. Where there is a right of appeal in which an erroneous judgment may be corrected, there is no jurisdiction in a court of equity to set aside the judgment, as was done in this case. Counsel for plaintiff argue that the remedy by appeal was inadequate, because the funds of the estate had already been distributed by the executor to claimants other than the plaintiff. This argument seems to be fallacious. The executor, upon an appeal to the district court, and a correction of the order confirming the final report and ordering distribution, was still chargeable with the money due to the plaintiff, and his bondsman was likewise chargeable to make good the amount adjudged against the executor. It is apparent that the demurrer to the complaint should have been sustained, on the ground that there was no equitable jurisdiction to entertain the’ cause. See Barka v. Hopewell 29 N. M. 166, 219 p. 799. It follows, from all of the foregoing, that there is error in the judgment, and that it should be reversed, and the cause remanded, with directions to sustain the demurrer and dismiss the complaint; and it is so ordered. BRATTON, J., and R. R. RYAN, District Judge, concur. BOTTS, J., having been of counsel below, did not participate.