Browning v. Hadley

Jiy the Court. — Jenkins, J., delivering the opinion. This is an application for an attachment for contempt, alleging a failure of the defendant to comply with an order of the Court, (granted pending a suit in chancery against him as guardian, by his wards,) requiring him to turn over to the applicant, as Receiver in Equity, all the property in kind, as well as money, in his hands, belonging to the complainants. It appears, both by the petition and tbe answer, that respondent promptly delivered to the Receiver, in obedience to the order, the real estate, negroes, and other property, except money. The petition for attachment alleges as contempt the respondent’s failure to pay over money, and the applicant relies upon his last return to the Ordinary, stating a specific balance due by him to his wards as evidence of so much money in hand. The answer sets forth that that balance neither is, nor ever was money in hand; that it consists chiefly of two items, viz: 1st, a debt due by him. to the father of his wards at his death, and 2dly, a debt contracted with the administrator of his ward’s father by the purchase of property at administrator’s sale; that to facilitate a settlement between the administrator and respondent, as guardian, the latter receipted to the former for the aggregate sum of those debts as so much money, whereby the administrator was discharged, and the guardian charged pro tanto, but that no money passed between them; that, therefore, while he admits an indebtedness to his wards, he denies the possession of money in hand; that since the making of his return, the balance stated has been reduced by expenditures and pay [274] ments; and finally, that he has made efforts to raise a sufficient sum to discharge his actual indebtedness, which have failed by reason of the present condition of the country. The applicant does not controvert this answer, but predicates upon it a motion for a rule absolute. There are three reasons why this rule should not be granted: ' 1. The order appointing a Receiver was not a final judgment against the guardian. It was in the nature of an interlocutory decree in a suit pending in chancery. It contemplated the transfer of everything belonging to the wards then actually in the hands of the guardian, and capable of rendition, to the Receiver, to be by him held and managed pendente lite. To this extent it has been. complied with. There was really no money in hand, and consequently, by the terms of the order, none to be delivered. 2. The return shows, not money in hand, but a sum then due by the guardian. It does not even show the sum due at the time the rule absolute was moved. He alleges that it has been reduced by subsequent transactions. It is certainly not by the short process of attachment for contempt that an uncertain amount of indebtedness is to be ascertained. Its ascertainment may involve much litigation, and must be reserved for a final hearing of the bill. 3. Respondent’s prompt obedience to the order quoad the property in kind, and his inability to raise money wherewith to discharge his actual indebtedness, entirely relieve him from the imputation of contempt. The Court below very properly refused the rule absolute. Let the judgment be affirmed.