Fouche' v. Harison

¶1We think the trial took place in pursuance of the order of October 22d, 1881. The last paragraph of that order was never excepted to, pendente lite or otherwise, as may be seen by scrutinizing the record from page 249 to 252 (d) inclusive. This paragraph directs “that the case stand for trial upon the original bill and parties complainant as amended December 6th, 1880, and the matters alone responsive thereto in the answers of the several defendants, exclusive of the matters set forth in the cross-bills of the defendants filed as above stated.” Thus the order for trial severed, the, bill from the cross-bills, as such, and we do not discover from the record that the connection was ever restored, o.r that, the court paid much more attention to cross-bills, whether filed before the order was passed or afterwards. The master’s report indicates that the master thought, or inclined to think, that no cross-bill was .before him, and the amendment last filed to the main bill was finally shaped so as to put in issue all matters in dispute before the master, and upon which proof was offered before him, but which might not be sufficiently put in issue by the original bill. This finality of form was given to the bill as late as December 8th, 1886, nearly the last day of the peripatetic hearing. Thus *406the main bill was considered as covering everything that was adjudicated, for there was no adjudication .at the hearing, except as to matters which, were before .the master, his report being the only basis of the verdict and decree.- Through the master came every fact and all the law of the case tried.

¶2As did the court below, so shall we leave the cross-bills behind us. Four of them were put to sleep, under demurrer, October 22d, 1881, then partially awakened, June 15th, 1882, by setting them for trial at the next October term. Another, purporting to be an amendment, the same day the four were laid out by demurrer, was filed October 22d, 1881, and has not since moved in its bed, so far as we can ascertain. The last of all was filed December 8th, 1886, and is at rest in the record. Whether the court below ever looked upon' its face, we know not. It was served on nobody except the complainants in the main bill, named no one as party defendant, had no prayer for subpcena, and no subpcena was attached to it. It was a mere answer, with prayers for relief' scarcely incompatible with the prayers of the original bill.

¶3Having thus ascertained that the case tried was the main bill, and it alone, we are prepared to rule on the motion made to dismiss the writ of error, our decision upon which was reserved un-fl after the-whole case was argued because of the bewildering intricacy of the amendments, orders, exceptions, etc., etc.; the record being a swarming hive of professional industry and fecundity. Until this record came before us, we had no adequate conception of our brother Miller’s energy; and he doubtless will never have any conception whatever of the torture which his energy has cost the writer of this opinion, whilst he, the writer, was supposed to be taking his ease in the romantic wilds of upper Georgia. A skeleton in one’s closet is nothing to such a record in one’s trunk in full view of the mountains.

¶41. The motion to dismiss the writ of error was put orig*407inally on seven grounds. The fourth was abandoned, leaving us only six to dispose of.

¶5The first ground , is that certain named defendants to the original bill are not made defendants in error. One of these defendants, Gardiner, died pending the cause and was dead at the hearing. His representatives, if he had any (and of this the record does not inform us), were never made parties in the court below. If the case could be tried without them as parties, it certainly could be reviewed without them. The others, as was also the deceased, were non-residents of the State and were served with the bill and some of the cross-bills by publication, but never appeared in person or by counsel, never pleaded, answered or demurred to the original bill or to the cross-bills. As these defendants were beyond the jurisdiction of the court, and stood aloof from the case, although parties on the record, the trial below was ex parte as to them, and it is therefore doubtful whether they are necessary parties to the writ of error at all. But whether so or not, they cannot be necessary parties defendant, for they stand in the record on the same side of the case with the plaintiffs in error, and they should be co-plaintiffs in error if anything. Perhaps it is the sounder view that they ought to occupy that position, and we have accordingly passed an order granting leave to join them as co-plaintiffs in error by amendment, and the privilege of amending has been exercised conformably to that order. For the practice in such matters, see McNulty et al. vs. Pruden, 62 Ga. 135, and authorities cited. There is no doubt that, relatively to the main case, this amendment covers all possible objection touching the want of parties, for when a bill .in equity, filed for direction, etc. by an executor against creditors of the estate and his own personal creditors, is brought to this court by some of the latter, it is not necessary to make any of the defendants in the bill defendants in error.

¶62. The exact point of the objection, however, as shaped *408in the motion and urged in the argument, was that, though the main case might not, the cross-bills do require these persons to be defendants in error, for that they and the plaintiffs in error are on opposite sides of the cross-bills.' The fact is true, but the consequence does not follow. The case actually tried, as we have seen above, was the original bill alone; the cross-bills were not disposed of, save that some of them were long ago dismissed on demurrer, which demurrer was by the complainants in the- original bill, and by them only. And the complainants are all defendants in the present writ of error. The cross-bills thus demurred to were dismissed under exceptions taken pendente lite, and what is now to be examined touching them, if anything, is, whether these exceptions were well founded, and whether the rulings complained of affected, or might have affected, the result of the trial that took place on the main case. With proper parties to the writ of error, relatively to the cause actually tried, exceptions taken pendente lite in the progress of the cause, such as exceptions to rulings on cross-bills, may be reviewed as to any errors affecting the final result. Errors touching the cross-bills, which did not affect that result, will now and here go for naught. Code, §4250. The so-called cross-bills were answers by some of the defendants in the court below, taking their character of cross-bill from code, §4181; and in their element of cross-bills they sought relief against co-defendants as well as against the complainants in the original bill, and the complainants alone demurred, the co-defendants not joining in the demurrer, nor even making any appearance in the cause at any stage of it. The demurrer being sustained, it surely is not necessary to make such co-defendants parties defendant to the writ of error, in order to have the judgment sustaining the demurrer reviewed. All the parties to the demurrer on both sides are parties to the writ of error, and this would be sufficient were the writ of error founded directly on the judgment sustaining the demurrer and on that alone.

¶7*4093. The second ground of the motion to dismiss is that the writ of error was not sued out within sixty days after exceptions of law to the master’s report were overruled, his report having, in one of the rulings excepted to, held that the attachments pending in a court of law were invalid. The suggestion in this ground is that the report with the judgment of the court thereon dismissed the attachments, and that'a judgment dismissing an attachment is a final judgment. But the present writ of error is not brought in the attachment cases, which were cases pending at law, but in the equity cause; and it is enough to say that overruling exceptions of law to the master’s report was no final disposition of any part of the cause, whilst exceptions of fact were still pending and no verdict or decree had been rendered. An equity cause is not terminated by the master’s report or by disposing of exceptions to the same, but by decree. Much more might be said, but this is sufficient. It is plain to any one not of counsel that this ground of the motion, were it well taken, would not go to the whole writ of error, but only to one subject-matter amongst the many with which the writ is concerned.

¶84. The third ground of the motion is that “the bill of exceptions does not contain the evidence submitted to the judge on the hearing of the exceptions of fact, particularly such additions as were made to the testimony filed by the master.” The judge, in ruling upon exceptions to the master’s report, could not, according to law, have any evidence before him save that reported by the master. Acts 1884-5, p. 98. Code, §§3097(a), (c).

¶9The master’s report of the evidence is no less a part of the record than is the rest of the report, and the whole report should and does come up in the transcript. It follows that none of the evidence need be incorporated nor referred to in the bill of exceptions. This view of the matter disposes of the sixth ground of the motion as well as the third.

¶105. The fifth ground of the motion is that the plaintiffs *410in error have not paid one-half of the master’s fees, as required by an order passed in the progress of, the cause. The suggestion here is that failure to pay is disobedience, that disobedience is contempt, and that parties , in contempt are outlaws until their contempt is purged. The order, as we construe it, was not peremptory as to time of payment, but only as to the amount ultimately to be paid. To raise a case of contempt which would shut the door of this court in the face of a suitor would require a very positive order and very palpable disobedience.' The dignity of the State, of this court or of the court, below has not been insulted, if we are any .judges of dignity, and we therefore affirm the judgment on the cross-bill of exceptions as well as decline to dismiss the writ of error,

¶116. The seventh ground of the motion makes again the sixty days’point presented in the second ground, applying it to the decision denying the petitions to remove the cause to the Circuit Court of the United States. Granting that decision to be a final judgment, the point taken might be a good reason for not reviewing that decision om this writ of error, but certainly it is no reason for dismissing the writ and declining to review the final judgment in the main case, with such other decisions excepted to as stand clear of the question of removal.

¶12The motion to dismiss the writ of error is denied.

¶137. We proceed now to dispose, as briefly as possible, of the main case, in doing which we shall rule principles rather than mere points.

¶14It is contended that when an executor files. a bill as executor, he commits himself to nothing in his personal and individual character, that he is not a party otherwise than as representing the estate, and that pending the bill, he may act as freely, touching any individual right or interest involved, as if some other person were the complainant. To this doctrine we are quite unable to assent. On the contrary, as we understand the law, an executor who .files a bill in his representative capacity is a party thereto in *411his individual capacity also,-if as an individual he has a manifest interest in the subject-matter of the bill. Thus an executor being a legatee to the extent of the net income of the whole estate during his life, and to the extent of one-fourth of the general residuum, having filed a bill as executor to restrain some of his creditors from proceeding to subject his interest by levy and sale at law, to which bill creditors of the estate, as well as some of his own creditors, are parties defendant, and praying for a decree directing -him, in view of the conflicting claims of the defendant, how to administer the estate of his testatrix, and that the defendants establish their priorities and show to what extent they can legally subject assets of the estate to the payment of their claims, is a party complainant, not only as executor, but likewise as legatee and debtor. Can it be supposed that the decree on such a bill would not bind him individually in respect, to his legacies, or that as an individual he would not be entitled to take the benefit of the decree in so far as it might redound to his individual interest touching those legacies ? Moreover, is it not as much for the protection of the executor as for the advantage of the estate, and often more so, that a court of equity interposes to give direction ? Whoever heard that an executor has to make himself a party to his- own bill in order to bind himself individually, or to give himself, as creditor, legatee or otherwise, the fruits of the decree to the extent of his personal interest in the same ? Is it possible to doubt that on the present bill, it would be competent to decree the proper disposition to be made of the legacies, whether to pay them out on the claims of creditors, or to hold them free from such claims? And how could the executor, as an individual, either shun the burden or be shorn of the benefit of any rightful decree on that subject that might be rendered? Unless we are wholly unfit to be judges on such a plain question, we are at a loss to understand why it should be considered a question at all. That no direct authority upon it has been *412produced must be due alone to the fact that legal evolution has not progressed far enough to develop a needless precedent for a necessary conclusion.

¶158. Having, by his bill, submitted the fund in controversy, and the rights of all parties to participate therein, to the jurisdiction of equity, the complainant cannot, pending the bill, convey his interest in the estate to a portion of his creditors, in liquidation of their claims against him, to the exclusion of another portion, especially whilst the latter are held in check by a restraining order granted in the cause at his instance. By filing such a bill, warning creditors into court and forcing them to establish their priorities, he waives and renounces his legal right to prefer some creditors to others at his mere will. Certainly he cannot arbitrarily exclude those whose hands he has procured the court to tie for the time being. The court will not hold while he skins. The excluded creditors were tied and the preferred creditors loose. One of the latter was not a party to the bill until two days after the preference, and the other two, though parties, were not restrained, the bill not having prayed for any injunction as to them.

¶169. We need only add that, to accomplish the purposes of the bill, it is necessary to ascertain, first, the assets to be administered and their value. Next, the charges upon them as a whole, to-wit, expenses of administration, the debts of the testatrix, her charity legacies, the legacy of net income to her husband, the residuary legacy to him personally, and the residuary legacy to him in trust for his three sons. The next step is to eliminate from the general assets, by some practicable method, the present value of the husband’s two personal legacies, so as to apply that value to his debts; and the next, to ascertain the amount of his debts, settle their priorities and provide for their payment out of this fund in due order, leaving to him the surplus, if any. It was the action of his creditors that gave occasion to the bill, and the real problem of the *413litigation is, how to settle with them upon equitable principles, saving also their legal rights, so far as equity-will give effect to such rights. So long as this problem is unsolved, there can be no proper disposition of the main bill, to say nothing of the answers in their character of cross-bills.

¶17The master’s report is fundamentally at variance with the principles of this opinion, and without discriminating between the sound and unsound exceptions to it, we direct that they be sustained as a whole for the purpose of clearing the case of that report entirely.

¶18As to the elaborate and highly complicated machinery of the case, we purposely leave that intact, so that it may be worked by those who constructed it. Perhaps it may be expedient at some time to arouse the cross-bills and set them in motion, or it may be necessary even to add to them a few more of the same sort, but we hope not. It really looks like the ends of substantial justice might be reached without them, but it is well enough to hold them in reserve till after another experiment, the one already made being, as we have seen, misdirected and utterly barren. The train of the case was switched off into a siding instead of being run through on the main line. Having started as a through train, it must go through, and what is no less important, must keep its freight on board, not deliver the whole of it en route, or at some way station, to favorite consignees.

¶19Judgment reversed.