Gambar halaman
PDF
ePub

May and Pasco v. May-Opinion of Court.

ant was entitled to recover, nothing remained to be done but to compute the interest upon the amount found to be due by the report of the guardian to the County Judge and his adjudication thereon. There was nothing else for a master to do if the matter had been referred to him. The court made the computation, and decreed accordingly. If the cause had been referred to a master the direction must have been simply to compute the interest and add it to the principal, and report the result. Any exception to the report must have been only to the correctness of the computation. In a matter so plain as this it would have been a mere ceremony, productive only of additional delay and costs, to employ a master to do what the court found it convenient to do without one. In the case of Robertson vs. Baker, II Fla., and June vs. Myers, 12 Fla., the circumstances were such that it was impossible to proceed without proper statements of accounts, and the appellate court sent them back to obtain intelligible information, the master's reports being unintelligible.

The testimony was taken by an examiner under a decree made after the cause was at issue, requiring him to take the testimony of witnesses and such other testimony as might be offered by the parties, and report the same to the court. The cause was brought to a hearing upon "the pleadings and testimony therein" according to notice given by the solicitors for complainant to defendants' solicitor, upon a day set therefor by consent of the respective counsel, at which time the cause was argued by said counsel and the decree was thereupon speedily made. No suggestion appears to have been made for a reference to a master. No motion for a rehearing for that purpose, or any other purpose, was made by counsel for appellants.

The decree was entered December 27, 1880, and on the 27th day of August, 1881, the notice of appeal was served

[graphic]

May and Pasco v. May-Opinion of Court.

in behalf of the executrix, &c., of Asa May. Taylor appealed December 6, 1881. .

While it may not be necessary as a rule to apply for a rehearing before the Chancellor before appealing, in order to bring before this court any question that may arise upon the record affecting the decree, where the appellants entirely failed to move in any manner for a reference to a master to state an account and delayed nearly a year before taking an appeal, the entire merits of the cause having been argued and submitted to the Chancellor upon a final hearing, it would require a clear demonstration that he erred upon the merits of the case to induce this court to reverse the decree upon the ground that there had been no master's report stating an account. But whereupon the whole case it appears, as it does here, that a master's report must inevitably have produced a result quite as favorable to the appellants as that found by the Chancellor, we can see no merit in this ground of appeal.

Neither do we think it was absolutely necessary (though it may have been proper) for the Chancellor to have stated an account either before decree or in the body of it in this case, because upon the facts and the law there is not the least difficulty in determining what decree should be made. See Field et al. vs. Holland, 6 Cranch., 8, 22.

VII. The appellants complain that the costs of the case should not have been charged against them; that they could not make payment until the true balance was found and they had no means of ascertaining that balance, which was best known to Alvin May's executor, who was the plaintiff's guardian, and that the balance should have been ascertained and demanded before bringing suit. And they insist that the fund in controversy should pay the costs of the suit.

We think under the circumstances of this case the Chan

May and Pasco v. May-Opinion of Court.

cellor did not abuse his discretion in awarding costs against the defendants. They had equal opportunity with complainant to ascertain what amount was due to her.

The evidence was matter of record. They resisted a recovery, and the great bulk of the costs and expenses was made by them in attempting to establish certain facts not constituting a defence in law or in equity.

There had been no tender by the defendants.

The general rule which gives the costs of the suit to the victorious party and throws them upon the unsuccessful party applies equally to cases in which parties are suing or depending in autre droit and to those in which they are sui juris. 2 Dan. Chy., 1382.

This rule is, however, not always applicable to trustees and representatives who necessarily or fairly sue or defend for the protection of estates and funds; in such cases the estate or fund will be chargeable; but the court will not allow them to take advantage of this rule in their favor by attempting to defeat the claims of a cestui que trust by setting up an improper defence. 2 Dan. Chy., 1410, 1415.

"Where, from the uncertain state of the account the accounting party is not able to make a specific tender of the balance due from him, yet if he has shown a willingness to render an account, the court will on final adjudication take such willingness into consideration, and exonerate him from paying costs to the other party; although the result may be that the balance is against him." Id., 1396; Adams' Equity, 393.

The statutory rule in this State is that costs shall be paid by the losing party in a suit, and we can find in this case no reason to charge them upon the complainant's estate.

Appellants further allege for error in the decree that it is inappropriate and not according to the prayer of the bill, but it is in form similar to a judgment at law.

May and Pasco v. May-Opinion of Court.

The bill prays for a judgment against the defendants (the executor of Alvin May, the executrix and executor of Asa May, George W. Taylor) for the amount found to be due the ward, and that they be decreed to pay it, and for execution in default of such payment, as in cases at law. The decree follows the prayer of the bill in this respect, and is in the usual form, corresponding to the requirements of the statute and the rules of court.

It is also complained that the decree directs execution against all the defendants alike, not providing that the money shall be made out of the estate of the principal, Alvin May, before resorting to the property of the sureties.

This ground of error was assigned by an amendment of the petition of appeal some time after it had been filed. No objection was interposed in the court below to the form of the decree.

The statute directs that the officer holding an execution against principals and sureties shall "make the money out of the property of the principal, unless he is insolvent or has no property, in which case the execution may proceed against the property of the sureties."

While it would have been proper to frame the decree with reference to the directions of the statute for the guidance of the officer holding the execution, as was suggested by the court in Hendry vs. Clardy, 8 Fla., we cannot regard the omission of this direction as error for which a decree should be reversed. The statute gives that direction to the officer. The court in Hendry vs. Clardy did not hold the omission to be an error affecting the validity of the decree, but made the suggestion "for the guidance of the Chancellor" that "it will be proper so to frame the decree that it shall be enforced against the sureties only in the event that the money cannot be made out of the principal."

Herndon v. Hurter and Conant-Argument of Counsel.

In the present case it is established to our satisfaction, as it was to the mind of the Chancellor, by the bill, answers and proofs, that the principal was insolvent, and his estate had and has no assets whatever. But if the parties, or either of them, desire it the Chancellor will add the direction suggested, by an order to be duly entered.

The decree is affirmed with costs.

URBAN C. HERNDON, APPELLANT, VS. WILLIAM HURTER AND SHERMAN CONANT, PARTNERS UNDER THE FIRM NAME OF WILLIAM HURTER & Co., APPELLEES.

1. Where the orders of the Chancellor concern the right of a receiver appointed by the court to compensation, and their effect is to allow him no compensation for services rendered under the order of appointment, the receiver being a party in interest, entitled to be heard, has the right to appeal therefrom. L'Engle vs. Florida Central Railroad Company, 14 Fla., 267, cited and approved. 2. Where a first mortgagee after bill filed, decree of foreclosure and payment of the mortgage debt, continues his suit, obtains the appointment of a receiver, and resists the claim of a second mortgagee for the payment of a just debt out of the mortgaged property, thus protracting the litigation and continuing the receivership, he is properly chargeable with the costs of the receivership.

Appeal from the Circuit Court for Duval county. Appellees moved to dismiss the appeal on the groun that this court has no jurisdiction to entertain the same.

The facts of the case are as follows:

William Hurter & Co. filed their bill against the Michigan Lumber Company to foreclose a mortgage, which, with the notes it was given to secure, they held by transfer fron⚫

« SebelumnyaLanjutkan »