Scott v. Duncombe

The defendant in an action brought by a receiver as such, put in a demurrer, which, on motion, was stricken out as frivolous; and she, on applying to the court for leave to answer, was allowed to do so,- provided that she executed a bond, with sureties, conditioned that if the plaintiff should finally recover judgment against her she would obey such judgment and would pay the plaintiff the sum thereby directed to be paid. Such .bond was thereupon executed. In an action thereon; it was held that the execution of such bond to the plaintiff as receiver, must be deemed an edmission by the obligors, not only that the plaintiff had been duly appointed receiver, but also that the receiver was authorized to bring the action mentioned in the condition of the bond. Held, also, that it was not necessary for the plaintiff, on the trial, to show the judgment recovered, and execution issued and returned unsatified; especially as the defendant had not set up in his answer that the plaintiff had not been regularly appointed receiver, and made no attempt to show that he had not been, on the trial. " Held, further, that it was not necessary for the plaintiff to introduce even the original order appointing him receiver, or his bond as receiver. The surety in a bond given to a plaintiff suing as receiver, conditioned to pay. any judgment the plaintiff may recover against the principal obligor, in that action, is liable for the amount of judgments recovered in cases wherein the obligee is appointed receiver subsequent to the execution of such bond, as well as for the amount of those recovered previously.

APPEAL by th,e defendant, Alfred H. Buncombe, from a judgment entered after a trial before a justice of the court, without a jury, a jury having been waived by consent. The action is upon a bond executed pursuant to an order of the court. On the 4th of October, 1861, the plaintiff herein, as receiver appointed in supplementary proceedings of the property of Francis E. Smith, a judgment debtor, commenced an action in this court against Francis E. Smith, Claiborne Ferris, Francis Ferris and Caroline C. Hatch, to set aside certain fraudulent transfers of property made by said Francis E. Smith, at various times, to them severally. The defendant Caroline C. Hatch, put in a demurrer, which, on motion, was stricken out as frivolous ; and she, on applying to the court for leave to put in an answer, was allowed to do so, provided that she executed a bond with two sureties, to the effect that if the plaintiff finally recovered judgment against her she would obey such judgment, and would pay the plaintiff the sum and all costs thereby directed to be paid. The bond was accordingly executed, a copy of which is set forth in the complaint. The plaintiff recovered judgment in said action against the defendant Hatch, for $11,003.63. The plaintiff also recovered judgment in the same action against the defendant Claiborne Ferris for the value of certain property which he fraudulently obtained from the judgment debtor, Francis E. Smith, for $2840.50. The case contains only so much of the evidence as to raise the exceptions taken by the defendant Buncombe, who alone appealed. ¡ The exceptions taken by the defendant were as follows : The defendant, Buncombe, objected to the judgment recovered by the plaintiff in the action in which the said Caroline C. Hatch, and others, were the defendants, on the ground that the same provided for the payment of other judgments than those on account of which the plaintiff was appointed receiver, and in reference to which said action was commenced- without notice to the defendant, Buncombe, and in reference to which the defendant, Buncombe, had not become surety; and also that the said plaintiff had not been appointed receiver in reference to said judgments until oafter the execution of the bond set forth in the complaint; which objection was overruled by the court; to which decision the counsel for the defendant, Buncombe,- excepted. The defendant also objected to the order of the court of common pleas granting leave to the plaintiff to commence this action, on the ground that it was granted without any notice to such defendant. The objection was overruled, and the defendant excepted. The defendant also objected to the order of Judge Hilton appointing the plaintiff receiver, on the ground that it was not shown to be an order made in the case, over which the court of common pleas had jurisdiction, either of the persons, or the subject matter; which objection was overruled by the court, and to which decision the counsel for the defendant, Duncombe, excepted. The counsel for the defendant, Duncombe, moved for a dismissal of the complaint, on the following grounds : 1. That the original affidavit and order, (if any there was,) from the court of common pleas upon which the order for a receiver was based, has not been introduced, and no jurisdiction is shown in the court of common pleas, or a judge thereof, to make an order appointing a receiver. 2. That the plaintiff has not shown any judgment, or judgments, which would form the basis of any order supplemental to the execution, prior to the execution of this bond. 3. That by the judgment offered in evidence, there has been created a greater obligation than existed at .the time of the execution of the bond, to the prejudice of the bond. 4. The bond is not given according to the order made in the action. It is not.approved by a justice of the Supreme Court, and has never been accepted by the court. 5. Bo demand has been made upon the defendant, Mrs. Hatch, nor upon.the sureties. The court denied the motion, to which decision on each ground before stated, the counsel for the defendant, Duncombe, severally excepted. The counsel for the defendant, Duncombe, proceeded to maintain the issue on his part, and thereupon the counsel for the plaintiff admitted thát the said judgment against Claiborne Ferris was compromised for the sum of $2000, and the money received by him as attorney for the said receiver prior to the commencement of this action, under an order of the court. The counsel for the defendant, Duncombe, then rested the case on his part. Bo further testimony being offered on either side, the counsel for the defendant, Duncombe, urged upon the court two propositions of law, on the facts .proved. 1. That the defendant, Duncombe, with his co-surety had executed0the bond in this action, with special reference to the amount of the two judgments in favor of DeG-oer & Rifflard, set forth in the complaint, and in which the plaintiff was appointed receiver, and as such for the benefit of said judgments had commenced the action against Caroline C. Hatch, Claiborne Ferris, and others; and that the amount of recovery on said bond should be limited to the extent of the said judgments and interest, and the costs in said action, and should not be held for the benefit of the judgments in which proceedings supplementary to execution were subsequently taken, and the plaintiff appointed receiver subsequently to the commencement of said action. 2. That by the terms of said judgment against Caroline C. Hatch and Claiborne Ferris, and others, it was ordered that the amount collected from the said Claiborne Ferris, should be credited ón account of the said judgment against Caroline C. Hatch, and that the said sum of $2000 paid by said Ferris was, in effect, a payment by the said Caroline C. Hatch, and in the absence of any special application, enured to the benefit and relief of the defendant, Dunscombe, and his co-surety in said bond, to the extent of said amount, on account of any liability on said bond, if any. The action was submitted' to the court, who subsequently made a decision containing the-findings of fact and conclusions of law, as follows : 1st. That the plaintiff was duly appointed and qualified as receiver at the time, and in manner and form and in proceedings on judgments, as alleged in the complaint. 2d. That on or about the 4th of October, 1861, the plaintiff, as such receiver, commenced and continued an action, in this court, against Claiborne Ferris, Francis Ferris, Caroline C. Hatch and Francis E. Smith, and on the 3d day of November, 1864, judgment was rendered, in said action, in favor of said plaintiff against all the defendants therein, and against the said Claiborne Ferris for the sum of $2480.50, and against the said Caroline C. Hatch for the sum of $11,003.63. That' by the terms of the said judgment, it was ordered^ that the amount collected from the said Claiborne Ferris, should be credited on account of the judgments against the said Caroline C. Hatch. Said judgment roll therein was filed in the office of the clerk of the city and county of New York, and the same still remains of record, and the said judgment, and every part thereof, remains due, and owing, from the said Caroline C. Hatch, to the plaintiff. ■ 3d. That on the 29th April, 1862, the defendants, Caroline C. Hatch, Alfred H. Duncomhe and Samuel M. Elliot, "executed to the plaintiff, as such receiver, in the action above mentioned, under and in pursuance of an order of this court, a bond in writing, under their hands and seals, and acknowledged, a copy of which bond and acknowledgments are set forth in the complaint in this action. 4th. That at the time of the execution of the said bond by the said defendants, the plaintiff had been appointed and qualified as receiver in the two proceedings and judgments mentioned in the complaint in this action. 5th. That before the commencement of this action, the plaintiff, as such receiver, under and in pursuance of an order of this court, received from- the said Claiborne Ferris the sum of $2000, in full payment for the said judgment recovered against him; and said judgment, as to him, was thereupon satisfied of record. And as conclusion of law, the judge found that the plaintiff was entitled to recover of the defendants the sum of $5000, being the amount of the bond above mentioned. To which findings and conclusions of law the defendant, Alfred H. Duncomhe, within the time prescribed by law, excepted.