M'Mahon v. Allen

Woodruff, Judge. The plaintiff herein is prosecuting this suit against the defendant individually, to recover moneys which he alleges the defendant received while acting as the attorney in fact of John Harrison, executor of Ruth S. Harrison, whose estate he claims as administrator dePonis non, &c., and as successor to Solomon Kipp, trustee, &c. Pending this suit, and on the 22d April, 1853, letters testamentary have been granted to the defendant, upon the will of the said John Harrison, and thereupon the plaintiff commenced a suit against the defendant, as the executor of John Harrison, [44] to recover (among other property) the same moneys for which the present suit is brought. The plaintiff, nevertheless, proceeds with this action against the defendant, as an individual, brings the cause to trial, and closes his proofs; and now, after a motion to dismiss his complaint on the ground that the defendant (as an individual) is not liable to the plaintiff for moneys he received as the agent for the deceased executor, John Harrison, the plaintiff, two years and four months after he had full notice of all the facts, moves for leave to make the executor of John Harrison a party defendant. It seems to me, that if there were no other reasons for denying the motion, the delay would be sufficient. But there are other reasons which constrain me to such denial, which may be very briefly stated. If the plaintiff is entitled to recover at all in this action, he was so entitled when this suit was commenced. If he was not so entitled when he commenced the suit, facts subsequently occurring cannot be introduced, either by amendment nor by supplemental complaint, to make a title to recover—so that the taking of letters testamentary, by the defendant, does not give the plaintiff a right to recover in this action, if he had not that right before such letters were taken. If it was essential to the right of recovery that the representative of John Harrison should be before the court, the plaintiff should have waited until such a representative was appointed. And it would not be just to the defendant, who, in this view of the subject, has a perfect protection, to permit the plaintiff, in effect, to bring a new suit, after he had gone to trial and discovered that he cannot succeed, by allowing him to amend his proceedings—certainly not without requiring him to pay all the cost to the present time, and opening the entire defence. It is urged that a complete determination of the controversy cannot be had without the presence of the executor of John Harrison. Why not? The judgment of this court will be entirely effectual to settle forever, and without any prejudice to the executor of John Harrison, or any other third person living,. the question, whether this defendant, individually, owes the [45] plaintiff anything, or not. A judgment against this defendant will prejudice no one but himself. A judgment in his favor will prejudice no person not a party to the suit, not duly represented herein by the plaintiff. Is it said, that a judgment herein against the defendant, for moneys collected by him as agent, may not protect him against the claim of the executor of John Harrison'? The answer is twofold:—First. This objection was to be raised, if at all, by the defendant himself; and if he have not set it up as a defence, he has waived it by the express provisions of the Code. And again: if he does not seek this protection, it is not the duty nor right of the plaintiff, in this stage of the controversy, to force it upon him - against his will. Besides, if it be conceded that the defendant might, for his own protection, have required the representative of John Harrison to be made a party, and he be not now held to have waived that objection, then the plaintiff was premature in bringing his suit as above suggested, and ought not now to be placed rectus in curia at the defendant’s expense. Still further5 this protection to the defendant is not what is meant by the case suggested, viz., “when a complete determination of the controversy cannot be had without the presence of other parties.” That case is, I think, where there are persons not parties whose rights must be ascertained and settled, before the rights of the parties to the suit can be determined. Doubtless there are many other cases, in which a defendant may require other parties to be brought in, so that the judgment of the court in the action may protect him against the claims of such other parties: but this is his own privilege, and he may waive it. If by the claim that a compléte determination of the controversy cannot be had without the presence of the executor of John Harrison, is urged on the ground that this defendant, being such executor, is liable in the one capacity or the other, and so there is propriety in bringing in the whole question into one suit, it may properly be answc-red— First, That to bring him in to charge him as executor, would [46] be to charge him in a suit commenced before he was liable to be sued, i. e. to enable the plaintiff to recover on a cause of action which, when the suit was brought, had no existence. Second. The plaintiff has already commenced a suit against him as executor; and that suit is now pending for the same cause of action, and there is no propriety in giving to the plaintiff the privilege of litigating the same matter here, while he is prosecuting such other suit.- Nor can we, upon the plaintiff’s application, consolidate the two suits. He has chosen his own course in this respect, and the estate of John Harrison ought not to be subjected to the double litigation. The circumstance that the defendant is himself the executor of John Harrison, does not alter the case in these respects. His rights, in these separate characters, are distinct, and bis relations to this plaintiff, as well as to those who are interested in the estate of his testator, are distinct, as much so as would be those of himself and the executor, if the executorship were vested in a third person. How far a complaint seeking to charge the defendant individually, and also as executor, can be sustained under § 167 of the Code, it is not perhaps necessary for me to say. But various decisions might be referred to, to show’that the causes of action cannot be united. So also as to the question whether, under any and what circumstances, the agent or attorney in fact of an exe.cutor can be made liable directly to the adininistrator de bonis non, for moneys collected for such executor in progress of his administration, and whether the moneys thus collected can in equity be identified and withdrawn from the estate of the deceased executor, and from the claims of his other creditors, if any there be, need not be passed upon here. If there are difficulties in the way of the plaintiff’s recovery, resulting from the answer to such inquiries, they may show that the plaintiff has misconceived his remedy, but that is all. It was intimated, on the argument, that it was only sought by the supplemental complaint, to make the executor “ a formal party,” and that no decree was sought against him as executor. The prayer, it is true, is, that the plaintiff may have [47] judgment against the defendant individually for said amount, but adds also the prayer, “ that this court may settle and determine, in the same proceeding and trial in this court., the whole controversy now subsisting between the plaintiff and defendant,” and for other and further relief, &c. This prayer is comprehensive enough to amount to a consolidation of both suits, and to embrace any relief which the plaintiff, as against this defendant, in any capacity may claim. And I do not perceive either the necessity or propriety of calling in the executor as a “formal party.” If the plaintiff had no cause of action when the suit was commenced, the adding of formal parties will not give him one. If his cause of action was perfect at that time, the absence of formal parties cannot prevent his recovery. It is not merely “ formal parties ” that the Code, § 122, requires the court to bring in. The absence of such parties is waived. If the presence of the executor is only required in order to conclude him in respect to the liability of the defendant to the estate of John Harrison for the same moneys, then, as above suggested, the plaintiff cannot force that protection upon the defendant in this stage of the controversy against his will, even if he might have been permitted to make such executor a defendant as a proper party in the first instance. I cannot perceive any sufficient reason for granting the motion, unless it be founded in the idea that the plaintiff may not establish his claim against the defendant individually, and possibly may show that, as executor of John Harrison, the defendant .is liable, and that therefore he ought to be saved the costs of this suit, by bringing in the whole controversy into one litigation, notwithstanding another suit is pending against the defendant in his representative character. Such a reason the plaintiff does not, and would not urge; and if he did, what I have above suggested seems to me to dispose of it. I am constrained to conclude that the motion should be denied; but as it was, to some extent at least, made in reliance upon the recommendations of the referee, the defendant’s costs of the motion, $10, should abide the event of the suit. Ordered accordingly.