'reported in lOCOIO.jand 14 P'40."ih:aMther; oase, heard in November, 1887, I was led to belie\'e ilihil't:r:theefl'ect of that decisIon sales made uooet the Sehoolfield decree. examination'l)f'tne subject, I am satisfied that 'the then expressed was wroIlg; The sale under the School· field but it waS"Dot -void: Concerning JlPon ,which'defendant relies, it cannot be necessary to .· , ,The proceedings in assessment and' sale ,ar¢'so far irregular that 'the title cannot be 'of'the opinion that judgmellt should go for the ,
al. v. MARX et at (Circuit Court of Appeals, FifthClrcult. May 8, 1894.) , I No. 199.
,RES JUDICA'J'A:r-i-'REVERSAL IN PART ON ApPEAL-ACCOUNTING BY ADMINISTllA· TOJ.t., ,
A plea sett!ng up, In bat;, of a suit for an accoupting by an admlnls· tratot, judgments of a county probate court approving his accounts filed In' that court cannot be sustained on ,evidence, showing that, on ap· peallil. duly, prosecuted from said judgments to a district court, judgment was renqered·disapproving and disallowing the accounts, and sll-staining the objections tlwreto except as to commissions allowed.
Appeal fpo.;. the .ern Districtof Texas.:
United States for the East·
The appellants, MinnIe M,Appleton, and T.J. Appleton, her husband, citidl,ens of the state of Michigan, claiming to sue in the right of the said Minnie M. Appleton, ap4 .as nextft:lends of James M. Strong, an infant, filed a bill In the circuit C01ll't of the United States for the eastern district of Texas . against Joseph Mal'x; L. C. De Morse, and others, citizeliS of Bowie county, :tn the state of Texas, and. Max ,'Munzesheimer, S. COl.'y, and'F. M. Duncan, !·nonresidents- Of, tb.e state, of Texas. The bill charges, in substance, that in November, 1884, James f:;trongdie,q. intestate in the state of Michigap, surviving the said Minnie M; Appletpn (then Minnie M. Strong), his wife and Widow, and the said James M. Strong, his only child and heir at law, then , an infant two years old; that on May' 7, 1885, the defendant Joseph. Marx was duly temporal'yadministrator of the estate of said James Strong, deceaseq.,1;Iy the county court of Bowie. county, 'Tex.; that on the Same day the sai<1defendantJoseph Marl\: gave bond as telllPorary administrator in the sum 'of $50,000, with all' the other defendants as sureties on said bond, which' bond was duly received, approved, and filed; that on the same day the said. Joseph Marx ,qualified as said temp,oraryadministrator. ,and entered upon tlle duties thereof: that on the 20th day of June,' 1885, the , said Joseph Marx filed in the county court of Bowie county an inventory and appraisement of ,the estate of said James Strong, deceased, in which he '., showed numerous claims due and owing to said estate, secured by mortgage and other liens,.recapitulating the same; that on June 9, 1885, and on Jan· nary 27, .1886, and January 25, 1887, the said Joseph Marx, as temporary administrator,collectedcertain. amounting to. about $19,500, belonging to the estate. of James Strong, deceased. That on October 1, 1884, the saId James;' "Strong, then living, placed in the hands of the said Jo· e seph Marx a.promissory' nute against,the firm of Frost & Ferguson, in Mil· leI' county, Ark., :for$850,wbich note belonged to said ·Strong, and was placed in the hapds of ;Marx for collection; that on .January 1, 1885, the said Marx collected the said note, with $50 Interest due thereon, which said sum of money was assets iin the hunds of saId Marx when he was appointed as tem·
APPLETON II. MARX.
porary administrator, and should have been included in the inventory and appraisement of the estate of said James Strong, and is now a proper charge against said Joseph Marx as such temporary administrator; that in January, 1885, the said Joseph Marx received from the Kaiser Lumber Company a large sum of money as the proceeds of the sale of lumber, machinery, etc., belonging to the estate of said James Strong, which said, money was assets behands of said Marx longing to the estate of said James Strong, and in when he was ,appointed temporary administrator, and should have been included in the inventory and appraisement of the property and estate of said James Strong; that the said James Strong owned and possessed 250,000 feet of lumber, which was of the value of $2,500, and that the said Joseph Marx, through willful and gross negligence, failed to include said lumber and prope,rty in the appraIsement of the assets of the said Strong, and through willful and gross negligence failed to take the said lumber into his possession, and failed to keep and preserve the same, but suffered and allowed W. Be,han, W. B. Kaiser, and J. M. Kaiser, three of the sureties on his bond as temporary administrator, to take and convert the said lumber to their own, we and benefit, whereby the said lumber and property waswtaIly lost to the estate of said Strong, deceased, whereby the said Marx became liable and bound to pay orators the value of said lumber and property, with interest, for permitting and allowing said waste; that at the March term, 1887, of the district comt of Bowie county, Tex., the said temporary administration of the estate of said James Strong, deceased, was determined, ended, and closed by the said court by its proper jUdgment, and that, by the judgment of said court, the said Marx, as such temporary administrator, was ordered and commanded to deliver up and turn over all the property, money, and assets then in his hands belonging to said estate to those entitled to receive the same, which judgment has never been set aside, modified, or appealed from; that there never was any regular administration of the estate of said James Strong, nor any necessity for an administration of said estate, for there were no outs'tanding debts on said estate at the death of said James Strong; that orators Minnie M. Appleton and James 1>1. Strong were the sole owners, and were entitled to the immediate possession, of all of the property and assets belonging to the estate of said James Strong, deceased, as the surviving wife and only child and heir at law of said James Strong, deceased. That in pursuance of said judgment of the district court, orators did, on the 21st of March, 1887, make a demand on said Joseph Marx, as such temporary administrator, for possession of all the property, claims, money, and assets belonging to the estate of said James Strong, deceased, which demand said Marx failed and refused to comply with; that said Marx, astemporary administrator, converted to his own use and benefit all the property, claims, money, and assets belonging to the estate of James Strong, deceased, as the same had come to his hands and possession, and thereby committed a total waste of the whole of said estate that had been committed t() his charge by virtue of the appointment; and that in March, 1887, the time when the said temporary administration was closed, and when said Marx, as temporllry administrator, converted to his own use and benefit all the property, claims, etc., the said IVlinnie M. Appleton was a married woman, the wife of T. J. Appleton, the co-complainant, and the said James M. Strong was and is an infant under 21 years of age. '['he bill prayed for process, and for judgment and decree against all of the defendants for the full amount of the several sums of money mentioned in the bill. and for the full amount of the property, claims, money, and assets mentioned and specified in the said inventory and appraisement, togetller with interest on all of said amounts at the rate of 8 per centum per annum from March 21, 1887, and for general relief. ' To this bill the defendants demurred for want of eqUity, and specially excepted that the county probate court of Bowie county, Tex., had sole, exclusive. original jurisdiction of the matters and tllings complained of in the bill. This demurrer was not properly verified, because not supported by the affidavit of the defendants that it was not interposed for delay. See Equity Rule 31. The demurrer coming on, however, to be heard, the court sustained tbe same as to the allegations in the complainants' bill as to the
FEDERAL REPORTER,' vol.
closlhg.of 'the administration, but ,itaa to the jurisdiction of the court and as to the want of eqUity in thebl1l;ana complainants were given leave to amend; whereupon the complainants 'filed' an amendment, by which it was' alleged that on February 5, 1886" the defendant Marx: :filed his report as temporary administrator of the estate of James Strong, deceased, in the county court of Bowie county, Tex.; that the complainant Minnie M. AppletOn (then Minnie M. Strong) filed objections and exceptions to the said report,theSllid James M. Strong, then an infant, not being a party to the proceedings in said county court; that on February 20, 1886, the defendant Marx filed a supplemental report as temporary administrator, showing the condition of the said estate,and the amount of cash In his hands as temporary administrator; that the two reports :filed by Marx on February 5, 1886, and the report filed on February 20, 1886, aM the objections and exceptions of Minnie·M. Strong, surViving wife, were heard and a judgment rendered thereon by the county court of Bowie county, Tex., approving and con:lirniingthesaid report, and overruling the said objections and exceptions, Minnie M. Strong appealed to the district court from which judgment the of BoWie county in the state' of Texas; tbat on March 1, 1886, the said Minnie M. Strong (now MinnieM. Appleton) filed an appeal bond, as required by law, whereby the said cause was duly appealed to said district court for a trial anew; that on March 19, 1887, the said case was tried by the district court of Bowie county, and a final judgment rendered therein, whereby the said temporary administration of the defendant Joseph Marx of the estate of James Strong, deceased, was determined, ceased, and ended, which judgment has never been appealed from, set aside, or changed; that the district court, in the last-named judgment, reversed,revised, and reformed the said judgment of the county court in favor of Mrs. Minnie M. Strong, and closed the said temporary administration, and ordered said Marx, as the temporary administrator, to surrender up and turn over to the parties en· titled thereto all the moneys' and assets belonging to the said estate; that on January 21, 1889, the records and papers of the district court of Bowie county were totally destroyed by :lire, and that the jUdgments of the district court, and the judgment of the county court, and nearly all of the original papers in said temporary administration, were destroyed by the said fire; whereupon they prayed as they had prayed in the origina.l bill, but waiving answer under oath. . To tbe bill as thus amended the said defendants renewed and propounded the demurrer filed to the original bill, and again alleging want of equity, and that the plaintiffs, if they have any action at all, have a complete and adequate remedy at law. This repropounded demurrer was not verified according to equity rule 31. However, the same came on to be heard, and was sustained, with leave to the Complainants to further amend by tbe rule day in March, 1892; and thereupon the complainants again amended, reciting substantially the same facts 'as recited in the original bill and its first amendment, but therein more specifically and at greater length, with more adjectives, and charging fraud and false accounting against the said Joseph Marx, as tbe temporary administrator. In this last amendment to the bill the complainants prayed for an accounting against tbe said Joseph Marx; that tbe distributive sbare of the residue of the estate due Minnie M. Appleton be ascertained, and a decree entered allowing the said Minnie M. Appleton bel' said distributive share of tbe estate of said James Strong, deceased; that the said residue of said estate be partitioned and divided between Minnie M. Appleton and said James M. Strong equally, sbare and share alike; that the distributive share due to James M. Strong be ascertained, and a decree entered allowing the same, and for a decree making a :final partition, division, and distribution of the entire residue of said estate among tbe distributees as tbeir respective rights may be sbown to tbe court; and they again prayed for judgment and decree against Marx, as temporary administrator of tbe estate of James Strong, deceased, as principal, and bis codefendants, as sureties, for the full amounts of tbe several sums of money mentioned and specified in this amended bill and tbeir original, first amended bill, togetber with interest, costs, etc. As before, the defendants demurred, and on the same grounds, but with a different result; for, at the
September term, 1892, the court overruled the demurrer and exceptions, giving leave, however, for the defendants to answer. Thereupon, in November. 1892, the defendants generally, without particularly naming any of them, filed a plea as follows: "To so much of plaintiffs' bill as'demands and prays for an accounting by defendant Joseph Marx, as administrator of the estate of James Strong, deceased, that such accounting has been fully made and acted upon and approved before a competent jurisdiction, to wit, the county [probate] court of Bowie county, Texas, at the February term, A. D. 1886, of said court, in the matter of the administration of the estate of said James Strong, deceased, in said court, then defending, wherein the final account report of the said Joseph Marx, as administrator of said estate, came on regularly to be heard, and the plaintiffs herein then and ·there appeared and objected and excepted to said final account and report, the plaintiffs alleging, in objection thereto, the same matters set forth in their original and amended bills herein, and upon the trial before said court of said final account and report of said Joseph Marx as administrator as aforesaid was, by the court, approved, and a linal judgment approving same duly entered upon the minutes of said county court of Bowie county. Wherefore defendants plead said action and judgment of said court in bar of plaintiffs' bill for- an accounting herein. And for further plea in this behalf the defendants say that the, defendant Joseph Marx was, at the time of the death of James Strong, a bona fide creditor of said Strong in large amounts, to wit, the sum of nine thousand, six hundred dollars ($9,600.00), besides interest, in which amount the said Strong was justly indebted to said Marx; that 'said Marx, as such creditor, on the - - day of May, 1885, applied for and obtained letters of administration upon the estate of said Strong in due and proper manner as provided by law, and without wrong or fraud of any kind, and defendants specially .deny that any false or fraudulent r-epr-esentations were ever made by him in any manner to obtain said letters of administration, but the same was made in good faith, to protect his rights as creditor-; that the plaintiffs herein appeared in the county court of Bowie county, Texas, wher-ein said administration was pending, and contested said Mar-x's r-ight to administer said estate, and said contest was dUly, r-egularly, and finally tried by said court, and it was adjudged by said court that said Man was a bona fide cr-editor of said Strong, and was entitled to administer on his said estate, and said court did pr-oceed to appoint said Marx administrator; that he duly qualified, and said estate was by him duly, legally, and regularly administered in said cour-t, and tlie finalr-eport and account of said Mar-x as administrator was duly approved by said court; that all the above proceedings were regular, fair, ana in accordance with law, and in a court of competent and. exclusive jurisdiction; that said or-ders and judgments have never been reversed or set aside, but were appealed from by plaintiffs herein, contestants in said proceedings, to the district court of Bowie county; that said appeal was abandoned by plaintiffs, and plaintiff Minnie M. Appleton, for- the fir-st time, in the district court of Bowie county, offered and tendered a bond to withdraw said estate from administration, and said district cour-t accepted the same, and entered an order withdrawing said estate from administration, which said action and or-der of said district court defendants say was without and beyond its jurisdiction, and was void; that said action operated an abandonment of the appeal, and the original orders, action, and judgment of the county court afor-esaid wer-e and now ar-e final. Whereupon," etc. This plea was verified by the affidavit of the solicitor for the defendants to the effect that the matters of fact stated in the above plea are trne; but ther-e was no certificate of counsel that, in his opinion, said plea was well founded in point of law, nor any affidavit by any defendant that it was not inter-posed for delay, or that it was trne in point of fact. The evidence pertinent to the plea shows that Joseph Marx was appointed temporar-y administrator of the estate of James Strong, deceased, by the county court of Bowie county, Tex., on the 7th day of May, 1885; that on the same day he qualified as such temporary administrator by taking the oath and giving bond in the sum of $50,000; that on the 20th day of June, 1885, said Marx filed a sworn inventory, and on the 5th of February, 1886, tiled a report in the county court of Bowie county as temporary administrator,
wherein he adilliftM, the'colld¢tion Of a latg'esum of money, and alleged an appropriation of ltitiC'fl'i(}t if'ln paymeIitof his own indebtedness; and on iliesame day, ·. <1i1ed an additional report, showing appropriatheci"edit of the estate,and that aftertion of more of w8.rdil, on Februll.r1 20, an lldditiooal report, showing amount of funds of said estateon!l'aIid at date of same to be $15,B40,and asking an allowance of 5 per, for receiving said' moneys. To the reportSftlM February 5th,'?Mrs. Minnie Strong, surviving wife of James she objected to the credits claimed 01' suggestel1 by' Mant,and l1ftetwards filed obj(ictions to the repdrt of }i'ebruary 20th;: 'The objections to the, said reports filed February 5theame on to be, lieard,b!lfore the county court of Bowie county at a reguIarterm" February 19,1886; and' the said courPentered the decree following: "This day came On t9 be· heard thereport'9f'J. Marx, temporary administrator of the estate ofJa1i1es''Strong,deceasedi'was examined and approved' and admlnistmtor ordel!'ed'to pay courtcostfont of the funds the estate ,In his hands, and he forthwlliI]f', deliver, the etltatereiilainlng' in his 'possession to the, pet&>Ii legally I 'el:\tltled' to tliepossession "of the same. 'Mrs. 1\iinnie M. Strong\",by her attorney; gIves notice of appeal in open court to the district eourt, (I.l!:UoiWie county, Tex1lS, and, it to thecol1rt that there Is a cotttl!!!f pendlng over the appointment of a. permanent administrator, it is ordered that this te:mporliry administrator' be continued until the termicontest, 'frQttl,Whlch judgment the said Minnie M. Strong has appealed"toourdistrict eourt. of Bowie county, Texas." And thereafter the objections to the rep0l"t \)fFebl"uary 20th were heard andoverrnled. From' these'judgments of the CO!urt, Mrs. Strong prosecuted an appeal to the district court'of Bowie county,'when the follOWing decree was rendered: "This cause was this day trial, where'l111oncame the parties plaintiff and defenda.nt, :by their attorneys, and announced ready for trial. It being made to appllitt,since the institution of tMs suit, plaintiff Minnie M. Strong has intermarried with one T. J.Appleton, on motion of plaintiff said T. J. Appleton wasrilade a party plain.tiff with his said wife (now Minnie M. Appleton), and suit ordered to proceed in their name as plaintiffs. ' Thereupon came on to be heard the objections of plaintiffs to the report of defendant filed in the county court of Bowie county, as follows, viz. : Two reports filed on the 5th of February, 1886, and one report filed on the 20th day of February, 1886. And It appearing to the court that plaintiff's objection to said two first-named reports filed on the 5th day of February, ,1886, are well taken, and that ,the law is for the plaintiffs,it is ordered, adjudged, and decreed that said two repolJts be disapproved and not allowed, and judgment is hereby rendered for plaintiffs, sustaining their objection to said two reports, and that defendants take nothing thereby. It is further ordered, adjudged, and decreed that the said rellort marked, '!"Ued on the 20th day of February, 1886,' I3howing amount offtlnds of said estate on hand at date of same to be fifteen thousand three hundred and forty dollars, and asking an ance of five per cent. commission for receiVing said moneys, be allowed, and approved P.s to aUowanee l;If'said commiSSion, and that plaintiffs' objection be overl'Uled. It is therefore considered and adjudged that defendant be allowed as commissions for receiving said moneys the sum of seven hundred and sixty-seven dollars, 'and that said temporary administration be closed. It is further ordered thaI a certified copy of this judgment be transmitted to the. county court of Bowie county for observance." The evidence further shows that on the 4th day of May, 1885, Joseph Marx filed his petition in the coul1ty court of Bowie county, state of Texas. suggesting· the' death· ofJames Stl'Ong, his domicile in Bowie county, Texas, a large estate, consisting of real and personal property and choses in action, the indebtedness Of Strong to petitioner in the sum of about $10,000, and asking to be of administration of said' estate. To this application Mrs. Minniel\f. Strong, surviving wife of James Strong, filed exceptions and objeetions, among 'other things denying that saitl Josepb"Mal'x was a crroitol' of said estate" pecause his pretended debt against said estate was fraudulent. illegal, and 'tlilt abonafiffe debt against said declaring there were no other creditors; and tendering a hond in the sum cjf $20,000, conditioned
,APPLETON 'Ii. MARX.
that oblig-ors would pay the debt of 'said .Joseph :YIarx upon the establishment thereof by a suit in a court of competent jurisdiction. The application (If Joseph Marx for permanent letters of administration came on to be .ueard before the county court on the 20th day of February, 1886, and thereupon the court decreed: "It is therefore considered, ordered,' adjudged, and de-creed by the court tbat the objection of the said Minnie M. Strong to the application of the said Joseph Marx for permanent letters of administration be, and the same are uerelJy, overruled, and that the applicant, Joseph Marx, be. and he is hereby, appointed administrator of the estate of the said James M. Strong, deceased, and that the clerk of this COUl't be, and he is hereby. directed to issue letters of administration on said estate to Joseph Marx upon his giving bond in the sum of fifty thousand dollars, conditioned payable and approved as the law directs, and William Behan, A. L. Ghio, and A.J. Hoffman be, and they are hereby, appointed appraisers of said estate; to all (If which Minnie M. Strong, bY' her counsel, excepts, and in open court gives notice of appeal to the district court of Bowie county, Texas." The appeal prayed for above was perfected to the district court. When the matter came on to be heard in the disnict court, the following proceedings were had, as testified to by Mr. Todd, the counsel for .Joseph Marx (reference being had to parol testimony because of the alleged destruction of the Bowie county records by fire): "Immediately thereafter came on to be heard the appeal from the judgment of the county court appointing Joseph Marx permanent administrator of the estate, and, when that matter was called up, the counsel for the contestant, Mrs. Appleton, complainant in this suit, arose in his place in court, and stated to the court, in substance, that. the contest was based upon the denial of the genuineness of the notes claimed to be held by Marx against Strong, and consequently the denial tbat he was a creditor entitled him to administration, but that all parties Interested· had agreed to submit the original notes, with a large number of admittedly genuine signatures of Strong, to. an expert, Rhodes Fisher, of Austin, and abide by his decision as to whether the notes were genuine or not; tbat after some time the said expert, Rbodes Fisher, had rendered a decision, deciding that the notes were genuine, and the contestant's counsel then stated to the court that they did not further insist upon their contest on that gl'ound, but withdrew it. At the same time the counsel offered to the district court to make a bond to secure other claims against the estate which had not been allowed by the court, and asked to withdraw the estate from administration. The court fixed the amount of the bond at $6,OOO,-being' about double the amount of claims whicb had been disallowed by the district court at the former order,-and a good and sufficient bond was tendered by Mrs. Appleton as principal, Mr. Sliter, Capt. F. M. Henry, ViT. H. Tilson, and J. H. Henderson as securities Thereupon, the contest having been withdrawn, the district court affirmed the appointment of Joseph Marx as permanent administrator, and in the same order accepted the bond in. the sum of $6,000 to secure other claims, and make a final order withdrawing the estate from administration, closing it up, and ordering the administrator, Joseph Marx, to deliver to the persons entitled to the same, upon their demand, all the property in his hands belonging to the estate of James Strong." On submission of the evidence, the court below entered a decree as follows: "On this day, this cause being called, and it appearing to the court that heretofore, to wit, on May 17, 1893, at Paris, in chambers, upon hearing then and there and upon plaintiffs' original bill and amendments, the defendants' plea, and the plaintiffs' replication, and the issues joined, and the evidence and argument thereon, the plea of the defendants herein was sustained b;y the court and found to be true, and defendants' general demurrer having been sustained to plaintiffs' bill as to !J,ll other allegations and issues not put in issue by said plea, and it was adjudged that said plea meets all the equities alleged in plaintiffs' bill, it was ordered, adjudged, and decreed that said plea of defendants be sustained, and that final judgment be entered at the regular term of this court sustaining said plea, and dismissing the plaintiffs' bill, which order was duly certified and is of record: It is therefore considered, or(lered, and adjudged and decreed tllat said order so made in vacation, as afoz'esaid, be, and the same is hereby, approved, and in all thing..
contlrmed. and it is now here ordered and adjudged and decreed by the court that the plea of the defendants herein be and is sustained and held to be true. allQ the plaintiffs'bill herein be and is hereby finally dismissed, without to any action at law by plaintiffs; and that pl,aintiffs pay all costsJn tb18: behalf incurred and expended, for which execution may issue 10 favo1.'1 of. the defendants and otIlceIlS of the court." F1'om this decree plaintiffs appealed to this court.
F. :M. Henry, for appellants. Chas. S. Todd, for appellees. and McCORMICK, Circuit Judges, and LOCKE, District Judge.
PA..ltl)EE, Circuit Judge (after stating the 1)acts as above). Appellants assign as error to be corrected in this court that the court. below sustained appellees' plea and dismissed the bill and amended 1:>ills, when the court ought to have rendered a decree the plea, and giving the complainants, appellants here, the prayed for in the bill and. amended bills, and, as they allege, sustained by the evidence. "At the hearing, upon a plea in equity and a· geMral replication, no fact is in issue but the truth of the matter pleaded." Farley v. Kittson, 120 U. S. 303, 7 Sup. Ct. 534. "The plaintiff may set. down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equit.Y they ought to avail him." Equity Rule 33. ''When a plea in bar meets and satisfies all the claims of the bill, and it is sustained, it will, under equity rule 33, avail the defendant so far as to require a. final judgment in his favor." Horn v.Dry Dock Co., 150 U. S. 610, 14 Sup. Ct. 214. "At the hearing upon a plea in equity and a general replication, if the plea be overruled, the defendant must be assigned to answer the bill by the next rule day." Equity Rule 34; Farley v. Kittson, supra. "The proper office of a plea is, not like an answer admitting all the allegations of the bill, nor like a demurrer admitting those allegations, to deny the equity of the bill; but it is to present some distinct fact which of itself creates a bar to the suit or to the part to which the plea applies, and thus to avoid the necessity of making the discovery asked for, and the expense of going into the evidence at large. Mitf. Eq. PI. (4th Ed.) 14, .219, 295; Story, Eq. PI. §§ 649, 652." Farley v. Kittson, supra. Farley v. Kittson is also authority for the proposition that, unless new matter is alleged in the plea,' even if the plea be put at issue, it raises no question but questions of law. The evidence shows that the judgments of the county court of Bowie county, Tex., approving the accounts filed therein by Joseph Marx as temporary administrator of James Strong, deceased, were not only appealed to the district court, but that the appeals were duly prosecuted, and jUdgment had thereon, in the said district court, by which the two reports filed February 5th, which related to the general accounts of Joseph Marx, administrator, were disapproved and disallowed, and judgment in that behalf given in
PHIT..LER t1. YAltDLEY.
favor of plaintiffs, sustaining their objections to said two reports, and that the .report of February 20, 1886, which purportw to show the amount of funds of said estate on hand at the date ot the same to be $15,340, and asking an allowance of 5 per cent. for receiving said moneys, was allowed and approved only as to allowance of said commission of $767. As there is no doubt about the jurisdiction of the district court of Bowie county, Tex., in the matters shown to have been appealed thereto from the county court, the plea, so far as it attempts to establish that the complainants are barred of their action beeause there had been a full and dnal accounting in the county court of Bowie county, is not supported by the evidence. Whether the district court of Bowie county had original jurisdiction to accept the bond of complainants, and thus end the judicial administration of Strong's estate, we do not feel called on to decide, because it is a question not properly presented for consideration at this time, and because it seems whether the administration be closed or still pending in the state court, the complainants' suit may be prosecuted. Payne v. Hook, 7 Wall. 431; Byers v. McAuley, 149 U. S. 608, 13 Sup. Ot. 906. The conclusion which we reach in the matter of the plea is that, so far as it is intended to meet any of the claims of complainants' bill, it is not sustained by the evidence, and ought to have been overruled. The decree of the circuit court appealed from is reversed, and the cause is remanded, with instructions to enter a decree overruling the defendants' plea, lind with costs, and assigning the defendants to answer by the following rule day.
PHILLER et al. v. YARDLEY. (Oircuit Court ot Appeals, Third Circuit. July 12, 1894.) No. 12, March Term, 1894.
NATIONAL BANKS-!NSOLVENOY-PREFERENCES-CLEARING HOUSE BALANCES.
By special agreement, a national bank, instead ot the usual deposit of securities as collateral tor payment ot Its dally balance at the clearIng house, each day left with the clearing house manager all cbecks drawn on It, and other evidences ot Its indebtedness received trom other banks, to be held until the balance due from it for the day was paid. While certain checks and other evidences ot. its indebtedness were 80 held, the bank was closed by the comptroller ot the currE:'ncy. Thereupon the clearing house collected the amount of the checks, etc., from the banks trom which they had been received. and therefrom paid, besides the bank's balance tor the day, duebllls given by it for its balance for the preceding day, by their terms payable only through the clearing house the day after Issue, and actually in the exchanges held when the bank G:losed. and applied the remainder towards cancellation ot clearing house loan certificates issued to the bank under an agreement between the banks Whereby any loss from fallure ot one to pay such certificates was chargeable upon the others. Held that, as the transaction on the part of the bank was not in contemplation ot insolvency. nor with a purpose to give a preterence, or to prevent application ot Its assets as prescribed by law, the exchange between the banks was valid, and that it was not a.voilled, nor were the rights ot the clearing house or of the creditor banks 1mpa.ired, by what subsequently occurred; and theretore the receiver of