Fitzgerald v. Fitzgerald & Mallory Construction Co.

Ragan, C. In the district court of Lancaster county John Fitzgerald, in behalf of himself and all other stockholders of the Fitzgerald & Mallory Construction Company, sued the Missouri Pacific Railway Company in equity for an accounting. The decree of the district court was brought here on appeal, and this court rendered a decree in favor of the construction company and against the railway company for a large sum of money. (See Fitzgerald v. Fitzgerald & Mallory Construction Co., 44 Neb., 463.) A receiver was then appointed by this court for the construction company to collect the judgment and pay it out. in accordance with the further orders of the court. Subsequently the railway company paid this judgment in full to the receiver, and the latter, under the directions of the court, paid out all of said judgment except the sum of $70,000. A number of persons filed in this court, in this case, claims against the construction company, and sought to have said claims paid out of said sum remaining in the hands of the receiver. The court appointed a referee to take the evidence and to report his conclusions of law and fact as to the disposition to be made of said sum. The referee has taken the evidence and filed his report, and the matter now before us is on the motion to-confirm this report and certain objections made thereto-by certain claimants of a part of said fund. It appears from the evidence in the record that prior to the rendition of the decree in favor of the construction company against the railway company, John Fitzgerald in his own behalf had obtained a judgment for a large sum of money against the construction company; that he had caused the Missouri Pacific Railway Company to be garnished as a debtor of the construction company; that no-part of the judgment recovered against the construction company by Fitzgerald has ever been paid; that Fitzgerald died intestate before the rendition of the decree of this court in favor of the construction company and [388] against tbe railway company, and tbat bis widow, Mary, was by tbe county court of Lancaster county duly appointed bis administratrix; tbat tbe county court of Lancaster county, on tbe petition of tbe administratrix therefor, made an order licensing and authorizing her to sell .and dispose of, at private sale and at tbe best market price obtainable, such personal property of tbe John Fitzgerald estate as might be necessary for tbe protection of said estate; tbat tbe administratrix thereupon ;sold tbe judgment obtained by John Fitzgerald against tbe construction company to tbe First National Bank of Lincoln, and as such administratrix duly assigned to said bank all tbe right, title, and interest of tbe Fitzgerald estate in and to said judgment. Tbe administra-trix reported this sale to tbe probate court and tbe probate court confirmed it. It further appears tbat tbe members of tbe late firm of Marquett, Deweese & Hall were tbe counsel and attorneys of Jobn Fitzgerald in tbe litigation between him and tbe construction company; tbat they performed all tbe legal services for Fitzgerald in that litigation and obtained tbat judgment; tbat Mr. Marquett, of tbat firm, subsequently died, and tbat De-weese & Hall, tbe firm’s successors, filed a claim or lien for attorneys’ fees against tbe judgment. Tbe referee found and reported, in effect, tbat tbe fund in controversy should be applied to tbe payment of tbe judgment obtained by John *Fitzgerald against tbe construction company; tbat tbe First National Bank of Lincoln was tbe owner of tbat judgment and therefore entitled to tbe fimd, subject only to tbe attorneys’ lien of Deweese & Hall thereon for tbe sum of $10,000. Tbe referee found .adversely to all other claimants of said fund. Two parties only have filed objections to this report These are Messrs. J. M. Wool worth and S. H. Mallory. Mr. Woolworth claimed tbat be bad performed certain professional legal services for Mrs. Fitzgerald, administratrix, at her request, and that be bad performed certain legal services for Messrs. Deweese & Hall at their request, all [389] said professional services having been rendered in the litigation between the construction company and the railway company. Mr. Mallory’s claim is based upon certain promissory notes executed and delivered to him by John Fitzgerald. Mallory alleges that the consideration of these notes was certain claims which he held against the construction company and which he assigned to Fitzgerald, the latter agreeing that he would pay the notes out of whatever judgment he might finally obtain against the construction company. As already stated, the referee found adversely to the claims of both Mr. Woolworth and Mr. Mallory, and no objection is made here by them, or either of them, that the findings of the referee are not supported by the evidence. Their sole contention is that the order of the county couxd of Lancaster county authorizing the admin-istratrix to sell at private sale the personal property of her intestate, and the order of the county court confirming the sale by the administratrix of the judgment owned by Fitzgerald against the construction company were all without jurisdiction and absolutely void, and that therefore the judgment of Fitzgerald against the construction company still belongs to the Fitzgerald estate, is an asset thereof, and this court has no jurisdiction except to direct the receiver to pay the fund in controversy to the administratrix. We do not determine whether the orders made by the county court were interlocutory or final, nor whether such orders were erroneous, but they certainly were not void, as the county court is by the constitution and laws of the state given exclusive original jurisdiction of all matters relating to settlement of the estates of decedents; and the county court had jurisdiction of the subject-matter and of the parties to the proceeding in which the orders complained of were made; and we answer the objection of counsel by simply saying that these orders made by the probate court are not before us for review. Messrs. Woolworth and Mallory both claim in their [390] petitions liere to be creditors of John Fitzgerald, deceased. This estate is being settled np by and under the direction of the probate court of Lancaster county, and to that tribunal, and not to this court, the expeditors of the estate of John Fitzgerald must first address their complaints as to the action of that court and the admin-istratrix as to the disposition of the assets of that estate. M. S. Carter & Co. have also made application for leave to file a claim which they hold against the construction company and have the same paid out of the fund in the receiver’s hands. The application discloses that on the 9th of July, 1888, the construction company, by its auditor1, drew a draft on the construction company for $1,407.40, payable four months after date, and this draft was on the same day accepted by the construction company. To the filing of this application of Carter & Co. the receiver objects on the ground that the claim is barred by the statute of limitations. The objection is well taken. It was said in oral argument at the bar that certain payments had been made upon this draft or acceptance which took it out of the statute of limitations, but this, if true, does not appear from the record befoi’e us. A copy of the acceptance is set out in the application and in the petition made a part of the application, and it is recited that there remains due on the acceptance from the construction company $900, but there is no statement in the application or petition accompanying" it as to when, if ever, any payments were made upon this acceptance. The application for leave to file the claim against the construction company is therefore denied. All objections made to the report of the referee are overruled and the report is in all things confirmed, and a decree will be entered accordingly. Judgment accordingly.