McDowell v. Goldsmith

Cochran, J., delivered the opinion of this Court. These appellants, with the exception of Needles, Cariss, S. B. Sexton & Co., and R. Me. Eldowney, were all parties to the original and amended bill, and as to them, with the exception of Truitt, the bill was absolutely dismissed by the final decree. The appellee insisted that this dis ²²⁹ missal bars their right to participate in this distribution, and in reviewing their exceptions to the accounts, finally ratified by the Court below, it will be necessary to ascertain how far the decree dismissing the bill affected tbeir standing as creditors, entitled to payment out of this fund.

It will be seen by referring to the record that these ex-ceptants filed the original and amended bill for relief as creditors of Osborne ; that in the course of the proceedings a large mass of testimony was taken for the purpose of sustaining the allegations of the bill and establishing their claims as creditors; that the case was hoard upon the hill, exhibits, answer and testimony, and a final decree passed by the Chancellor dismissing the hill, as to them, absolutely, which decree, on their appeal, was affirmed by the Court of Appeals. This brief review of the original proceedings is sufficient to show that the case was submitted to the Chancellor on its merits, and that the rights and claims of these appellants wore finally adjudicated by his decree. The opinion filed by him, in conformity with Avhich the decree was drawn, bIioavs, beyond question, that these claims were considered and held to he barred by the appellee’s defence on the statute of limitations. Eor is the decree itself less conclusive on this point, for it vacates the deed of 1844 from Osborne to the appellee, not for the benefit of all the parties then before the Court, and dealt with by the decree, but only in favor of Truitt and such other of the creditors of Osborne as should thereafter come in under the decree and establish tlieir claims.

These exceptants, therefore, cannot be heard to say that the bill was dismissed as to them for AA'ant of prosecution ; they Avere before the Court, and heard upon proof offered to sustain the allegations of their hill, and they took and prosecuted an appeal from the decree passed thereupon. If the Chancellor intended to leave their rights and claims unaffected by his decree, he should have dismissed the bill ²³⁰ without prejudice ; and if the case was such as to authorize such a dismissal it was error to dismiss the hill absolutely. Griffith vs. Fred. Co. Bank, 6 G. & J., 424 .

Story, in his Equity Pleadings, section 793, says, that “a decree or order dismissing a former bill for the same matter may be pleaded in bar to a new bill, if the dismission was upon the hearing, and was not in terms directed tobe without prejudice.” The condition of these claims is not changed for any of the purposes of this case by the administrator’s confessions of judgments. He had no power to waive the appellee’s defence of limitations, nor could he by any such waiver establish the claims of these exceptants against this fund. This is not a case of assets that may be administered by an administrator, but of a fund in chancery, to be disposed of under a decree that the administrator must respect, and to which, so far as these exceptants are concerned, the appellee is entitled. He, as grantee in the deed from Osborne, was held by the Chancellor and the Court of Appeals entitled to the defence of limitations to the claims of the creditors assailing the deed, and it is not to be supposed that the administrator could deprive him of that defence by any admission or act whatever.

Duvall vs. Green, 4 H. & J., 270 . Byerly vs. Staley, 5 G. & J., 432 . Collinson vs. Owens, 6 G. & J., 4 . Warfield vs. Welch, 3 G. & J., 259 .

The claim of Truitt on the note for $2,800 stands on a different, though not more substantial footing. The deed vacated by the decree was executed in Eebruary, 1844 ; the original bill, in which the complainants allege the grantor’s indebtedness to them when she executed the deed, as their cause of action and .ground of their rights to relief, was filed in Agust, 1845, and this note, made in October, 1844, did not mature until October, 1845. It thus appears that the note was given for a debt, not within the description of the bill, but for one contracted after the deed was ²³¹ executed, and upon which the right of action did not accrue for some two months after the hill was filed. The claims were, therefore, not within the class of credits alleged, and Truitt, as a complainant, for that reason, had no standing upon it at the time the bill was filed.

She undoubtedly had, in such a case as this, the right,