American Bonding & Trust Co. v. United States ex rel. Paynter

Mr. Justice Shepard delivered the opinion of the Court: 1. The first thing in order is the appellee’s motion to dismiss the appeal. The first ground of this motion is that it does not appear on the face of the application for the extension of time for filing the bill of exceptions, or in the order granting the same, that it was for good cause. This is not required, and the presumption must be that the discretion of the court was rightly exercised. Nor is there any merit in the contention that the order must necessarily have been granted by the particular member of the supreme court of the District who presided at the trial, and by no other. The motion is overruled. 2. Some of the questions raised under the error assigned on [543] the action of the court in directing a verdict for the plaintiff are not really involved in the ease as presented by the record. For this reason we are not called upon to determine whether an action at law could have been maintained against the representative of the deceased joint obligor, or whether a bill in equity would properly lie against him to subject the assets of the estate to the payment of the joint obligation, without first showing the insolvency of the surviving joint obligor. This action is based on the decree of November 14, 1900, in which the note became merged. The debt was established against the one obligor and the administrator of the other, and its payment decreed. Both were personally served with process in the District. Each answered separately, but neither raised a question as to the obligation of the note, or the right to maintain suit upon it in equity. The court having jurisdiction of the subject-matter of the suit, and of the parties, its decree is undoubtedly conclusive as to each of them, in respect of those questions. Whether it is equally conclusive as to an adjudicated fact that is not raised or supported by any allegation of the pleadings is a question that will be referred to hereafter. 3. A further contention on behalf of the appellant is that it is not bound by the decree against its principal, because it was not a party to the suit. In this we cannot concur. Whether a judgment or decree against an administrator is conclusive evidence of the debt in an action against the surety on his bond, we need not determine, although the preponderance of authority seems to affirm that it is. Stovall v. Banks, 10 Wall. 583, 588, 19 L. ed. 1036, 1038; 11 Am. & Eng. Enc. Law, 2d. ed. p. 901. See also Washington Ice Co. v. Webster, 125 U. S. 426, 446, 31 L. ed. 199, 801, 8 Sup. Ct. Rep. 941; Moses v. United States, 166 U. S. 511, 600, 41 L. ed. 1119, 1129, 11 Sup. Ct. Rep. 682. It is certainly prima facie evidence, and that is all that is required for the purposes of this case; for if the surety could have attacked or impeached the decree upon any ground, no effort was made to that end. [544] 4. A further attack is made upon that decree in so far as it undertakes to reform the joint note, and make it the joint and several note of the makers. The note was described in the bill as binding the makers jointly, and there was no charge that it' had heen so drawn through mistake or fraud, though there were certain allegations as to the actual receipt for joint benefit, by the obligors, of the money for the loan of which the note had been given, which might possibly have afforded ground for its correction in accordance with the doctrine enounced in Pickersgill v. Lahens, 15 Wall. 140, 144, 21 L. ed. 119, 120; see, also, Hunt v. Rousmanier, 8 Wheat. 174, 214, 5 L. ed. 589, 599. There was, however, no prayer for such relief and it does not seem to have been in the contemplation of the pleader. It may be conceded that so much of the decree as has no foundation in the pleadings is erroneous, but whether it is a nullity, as has heen contended, is another question that we see no occasion to determine. Assuming its nullity and treating it as if it had not been reformed at all, yet the general decree establishing the debt against the administrator of one of the joint makers of the note, which was one of the express objects of the bill, furnishes ample foundation for the action upon his bond. Having proved this decree, and return of execution thereon unsatisfied, the plaintiff introduced the auditor’s report that had been made and confirmed in the account taken in the probate court, from which it appeared that sufficient funds had come into the hands of the administrator to discharge the proportion of plaintiff’s debt for which the verdict was returned. Proof was also made that the administrator had left the jurisdiction and taken up his residence in another State. There was, therefore, not only ample foundation for the action, but also sufficient evidence of the breach of the condition of the bond, to justify the direction to the jury to return the verdict on which the judgment was entered, hid. act 1798, [545] chap. 101, subchap. 8, §§ 7, 8, and 9 (D. C. Comp. Stat. chap. 1, §§ 93, 94, 95) ; Md. act 1720, chap. 24, § 2 (D. C. Comp. Stat. chap. 1, § 19) ; Stovall v. Banks, 10 Wall. 583, 588, 19 L. ed. 1036, 1038; Moses v. United States, 166 U. S. 571, 600, 41 L. ed. 1119, 1129, 17 Sup. Ct. Rep. 682. The Maryland act of 1720, which has been held unrepealed by the act of 1798 (United States v. Queen, 3 Cranech. D. C. 420, Fed. Cas. No. 16,109; United States v. King, 1 MacArth. 499; Dorsey v. State, 4 Gill & J. 471), requires that, before action upon the bond, execution on the judgment against the administrator must have been returned nulla bona, or showing made of such insolvency, etc., as would render the creditor remediless. The requirement of execution and return was satisfied, notwithstanding the return was made the next day after issue, by order of the plaintiff’s attorney. Mehler v. Cornwell, 3 App. D. C. 92, 99 ; Clark v. Walter T. Bradley Coal, Lime, & Cement Co. 6 App. D. C. 437, 448. We find no error in the direction to the jury to return the verdict, and the judgment thereon will be affirmed with costs. It is so ordered. Affirmed.