CORAM et al. v. INGERSOLL, 148 F. 169

LOAVELL, Circuit Judge. Andrew J. Davis died a citizen of Montana, leaving property both in Montana and in Massachusetts. John A. Davis, one of his next of kin, offered for probate in Montana a will which gave to him nearly the whole of this property. Certain other next of kin, desiring to contest the will, retained as counsel Robert G. Ingersoll, a citizen of New York, the plaintiff's intestate. Shortly afterwards two of these clients agreed with him in writing for his employment, and for a fee of $100,000 conditioned upon the defeat of the will.

The validity of the will was tried in Montana, and the jury disagreed. Thereafter a compromise was entered into, by which Ingersoll’s clients became entitled to a larger share of the Davis estate than would have fallen to them in intestacy. Only $5.000 was paid to Ingersoll. His widow, as ancillary administratrix of his estate in Massachusetts, brought this bill in equity to obtain a decree against one of the defendants personally for the payment of the contingent fee, and to establish a lien upon some part of the Davis estate in Massachusetts.

On final hearing, the Circuit Court entered a decree for the complainant, from which the defendants have appealed. We need consider only one of their contentions, viz., that the complainant is barred by a judgment in their favor entered in Montana. In order that this defense shall avail them, the defendants must show that the Montana judgment relied on was rendered (1) for the same cause of action; (3) upon the merits; (3) between the same parties or their privies. The present complainant, as administratrix of Ingersoll in New York, brought an action in Montana against the defendants in the case at bar.

In addition to an allegation of the facts above stated, her complaint set out that Ingersoll had rendered the services for which the fee was to be paid, that his services had procured the compromise, and had defeated the will of Andrew J. Davis, so far as the defendants were concerned, whereby Ingersoll became entitled ‘to the contingent fee as provided in the agreement, and to an equitable lien on the defendant’s interest in the estate. An amendment added an allegation that, by reason of Ingersoll’s prosecution of the suit to break the will, the representatives of John A.

Davis were constrained to consent to the compromise, and that Ingersoll “counselled, advised,, and aided in the making and effectuating the said compromise agreement.” The plaintiff in the Montana suit made substantially the same case as that set out in the present bill. The cause of action ivas the same in both suits. After Mrs. Ingersoll had begun suit in Montana, Harris was duly appointed Ingersoll’s administrator in that state, and, on motion of Mrs. Ingersoll, the original plaintiff in the Montana proceeding and the complainant here, he was substituted for her as plaintiff in the former suit.

The defendant’s answer in that suit denied that Ingersoll performed the services contemplated in the agreement, that his services procured the compromise, and that his prosecution of the suit to break the will constrained the representatives of Davis to consent thereto. It set up the statute of limitations of Montana, and further alleged that during Ingersoll’s lifetime he, together with Root and Coram, two of the defendants, upon a valuable consideration paid to Ingersoll by Root and Coram, “canceled, revoked, satisfied, and held for naught” the agreement upon which the suit in Montana and this bill are founded.

The plaintiff Harris in his “reply” denied that the contract was canceled or revoked in any sense. In the district court of the Second judicial district of the state of Montana, in and for the county of Silver Bow— “The parties hereto being present in court as on Wednesday, December 10, 1002, and the jury being present and answering to their names, the further trial herein is by the court resumed now. the opening statement on the behalf of plaintiff is resumed, and. being concluded, the introduction of testimony on behalf of plaintiff is commenced.

Come now defendants, and object to the introduction of any and all testimony on behalf of plaintiff upon the grounds that the complaint does not state facts sufficient to constitute a cause of action.

After argument of counsel the motion to exclude testimony is by the court sustained, to which ruling of the court plaintiff by counsel duly excepts and is by the court granted 30 days’ additional time to prepare and serve bill of exceptions herein, and upon motion of counsel for defendants the complaint herein is by the court ordered dismissed. * * * Whereupon the jury herein is discharged from further attendance of this cause.” Thereafter judgment was rendered as follows: “This cause having come on regularly for trial on the eleventh day of December, 1902, the parties appearing by their respective attorneys, and an objection having been made to the introduction of any evidence on the ground and for the reason that the amended complaint in said cause does not state facts sufficient to constitute a cause of action, and said objection having been considered by the court and sustained: 3STow, therefore, in consideration of the premises aforesaid and the law, it is ordered, adjudged, and decreed that the said action be dismissed and that the defendants recover of and from the plaintiff their costs and disbursements incurred herein, amounting to the sum of $12.50.

Done in open court this twelfth day of December, 1902.” Thé bill of exceptions does not appear in our record, but the case was taken to the Supreme Court of Montana. The only’ question presented to that court, under the ruling of the court below and the plaintiff’s exception thereto, was this: Did the complaint set forth facts sufficient to constitute a cause of action?

On the one hand, the plaintiff contended that the compromise of the litigation was a defeat of the will, so far as Ingersoll’s clients were concerned, and that the final decree which provided for a payment to the contestants of all they had claimed, although brought about by a compromise, was yet a complete performance by Ingersoll of the condition of the contract, and so entitled him to recover the stipulated fee.

On the other hand, the defendants contended that the contract was conditioned upon a decree for the contestants setting aside the will; that the complaint itself showed that the payment to the contestants resulted, not from a successful contest, but from a compromise of the contest- — in other words, that the contract gave Ingersoll his contingent fee only if he conducted the contest to a successful termination, and that it did not provide .for his payment in case .the litigation was compromised by the parties, and the will admitted to probate — that the failure -to continue the litigation and the subsequent resort to negotiation and compromise, as set forth in the bill, were in effect an abandonment of the contract, and left to the plaintiff only the right to recover upon a quantum meruit for services other than those mentioned therein.

After stating the facts as1 alleged in the complaint, the opinion of the Supreme Court of Montana began thus: “Tbe action of tbe court in sustaining tbe defendants’ objections to tbe evidence presents for decision tbe question whether tbe allegations in tbe complaint, which we have stated in substance, warrant recovery by the plaintiff.

The complaint declares upon the contract, and unless it appears therefrom that the plaintiff’s intestate fully performed the contract on his part, or facts and circumstances are alleged justifying a failure in any particular, a recovery cannot be bad.” ■ The court analyzed the contract and adopted the defendants’ construction of it. The opinion went on to declare that neither by his general retainer nor by the terms of the contract had Ingersoll authority to compromise the controversy, but only to prosecute the suit. Therefore his fee was payable only upon a favorable decree, followed by> an actual distribution.

When authority to compromise was conferred upon him, there was “a mutual abandonment of the contract,” and “when the compromise was consummated the contract could not be performed.” “The allegations of the complaint fall very far short of showing an entire performance of the contract.” The mutual abandonment of the contract to which the court referred was that exhibited by the allegations of the complaint itself, and had nothing to do with the alleged cancellation of the contract for a valuable consideration set up in the answer and denied in the replication.

Prom the opinion of the Supreme Court it thus plainly appears that the judgment of that court in favor of the defendants was based altogether upon the case presented by the complaint. No evidence and no amendment consistent with that complaint could have altered that judgment. . If the contract made Ingersoll’s fee contingent upon a defeat of the will by a successful contest (which was the

interpretation put upon the contract by the Montana court), then Ingersoll never performed his con-, tract, and could not maintain suit for the $100,000 fee. The Montana judgment was therefore based upon no formal defect in the plaintiff’s pleadings, but upon the substantial want of merit in his cause of action.

If we pass to more technical considerations, we shall find that the defendants’ objection “to the introduction of any and all testimony on behalf of plaintiff upon the grounds that that complaint does not state facts sufficient to constitute a cause of action” was in effect a demurrer; and, at common law, a judgment upon a demurrer is deemed to be a judgment upon the merits. Gould v. Railroad, 91 U. S. 526, 533, 23 L. Ed. 416; Bissell v. Spring Valley Township, 124 U. S. 225, 8 Sup. Ct. 495, 31 L. Ed. 411; Green v. Sanborn, 150 Mass. 454, 23 N. E. 224.

This is also the law of Montana, provided the demurrer goes to the merits. Kleinschmidt v. Binzel, 14 Mont. 31, 52, 35 Pac. 460, 43 Am. St. Rep. 601. Sections 1004 and 1005 of the Montana Code of Civil Procedure provide that, with exceptions inapplicable here, all judgments shall be upon the merits. In U. S. v. Parker, 120 U. S. 89, 96, 7 Sup. Ct. 454, 30 L. Ed. 601, a statute of Nevada was construed, similar to the Montana statute mentioned above, and the Supreme Court held that all judgments, save those specifically excepted, were rendered on the merits.

That the defendants’ objection above referred to is deemed a demurrer in Montana further appears from the decided cases. Wilson v. Harris, 21 Mont. 374, 54 Pac. 76; Haupt v. Indian Teleg. Co., 25 Mont. 122, 63 Pac. 1033. So, also, the similar practice by which, after answer, the plaintiff prays for “judgment on the pleadings.” Horsky v. Moran, 13 Mont. 250, 34 Pac. 360; Floyd v. Johnson, 17 Mont. 469, 43 Pac. 631; Hibernia S. & L. Soc. v. Thornton, 117 Cal. 481, 482, 49 Pac. 573; Wangenheim v. Graham, 39 Cal. 169, 175. In Haug v. Great Northern Railroad, 102 Fed. 74, 42 C. C.

A. 167, decided by the Circuit Court of Appeals in a case coming from North Dakota, where the practice seems to be like that in Montana, the court treated a motion to dismiss for the reason that the “complaint does not state facts sufficient to constitute a cause of action” as a judgment upon the pleadings, and put itself in agreement with the Supreme Court of Montana by stating that “a motion for judgment on the pleadings is in effect a demurrer, and, if sustained by the court and final judgment entered thereon, it has the same effect as if the demurrer to the complaint had been sustained and final judgment entered in favor of the party demurring.” The court went on to observe that a judgment on the pleadings is a final judgment, which cannot be collaterally attacked, and it held .that a judgment of dismissal like that rendered by the court in Montana in the case at bar could be set up as res judicata to an action subsequently brought.

To like effect is In re Reynolds (D. C.) 133 Fed. 585, 127 Fed. 760, decided by the United States District Court in Montana. The judgment of the Montana court was rendered upon the merits. On this point we find ourselves in agreement with the learned judge in the Circuit Court. We next consider if the judgment was rendered in a proceeding between the parties here before us. The defendants in the Montana suit were the defendants in the case before us. The complainant there defeated was Harris, Ingersoll’s administrator, appointed in Montana. As has been stated, the complainant here is Mrs.

Ingersoll, his admin-istratrix appointed in Massachusetts. Is the former in privity with the latter so that a judgment against him binds her? To answer the question we must examine' in some detail the doctrine of the privity of parties. If Ingersoll had sued these defendants in Montana in a court of competent jurisdiction, or had there been sued by them, a judgment in his favor or against him, either as plaintiff or as defendant, would have bound him and the defendants everywhere.

After his 'death his executors and administrators everywhere, speaking generall}r, would take the benefit or the burden of the judgment, as the case might be, because all of them would be in privity with him as their testator or intestate. Let us next suppose that Ingersoll had died before suit brought in Montana, leaving'no judgment in his favor or against him, but only a chose in action wherein he was debtor or creditor. Let us suppose that his executor or administrator appointed in Montana sued there on. this chose in action and recovered judgment as plaintiff.

What would be the effect of this judgment upon the rights of his executor or administrator appointed in Massachusetts? The executor and the administrator represent their testator or intestate, so that both are in privity with him. But there may be several executors and administrators, each appointed in a different jurisdiction. The authority of the executor to represent his testator and administer his goods is derived from the concurrent operation of the will and of the court of probate. The authority of the administrator is derived from the latter only.

Every probate court, speaking generally, has jurisdiction .of property found in its state. How far is administration in the sever-* al states independent, and how far does the act of one executor or administrator bind another? That an executor in one jurisdiction is to some extent in privity with an executor appointed in another jurisdiction has been decided. Hill v. Tucker, 13 How. 458, 14 L. Ed. 223; Goodall v. Tucker, 13 How. 469, 14 L. Ed. 227; Carpenter v. Strange, 141 U. S. 87, 11 Sup. Ct. 960, 35 L. Ed. 640. How far this privity extends we need not here consider.

Here we are dealing not with executors, but with administrators. The case of an administrator is not that of an executor. In Stacy v. Thrasher, 6 How. 44, 12 L. Ed. 337, it was said: “An administrator under grant of administration in one state stands in none of these relations to an administrator in another. Each is privy to the testator, and would be estopped by a judgment against him; but they have no privity with each other, in lawl or in estate. They receive their authority from different sovereignties, and over different property. The authority of each is paramount to the other.

Each is accountable to the ordinary from whom he receives his authority. Nor does the one come by succession to the other into tlie trust of tho same property, incumbered by the same debts, as in the case of an administrator de bonis non, who may be truly said to have an official privity with his predecessor in the same trust, and therefore liable to the same duties.” 6 How. 59, 60. The law regards the estate of an intestate as divided between the different jurisdictions in which it is situated.

The administrator represents his intestate only as to the property within the jurisdiction of the court which appointed him. Thus in Stacy v. Thrasher the court said further: “Each administrator is severally liable to pay the debts of the deceased out of the assets committed to him, and therein they resemble joint and several co-obligors in a bond. A judgment against one is no merger of the bond, nor is it evidence in a suit against the other. Their common liability to pay the same debt creates no privity between them, either in law or in estate.

It is for those who assert this privity to show wherein it lies, and the argument for it seems to be this: That the judgment against the administrator is against the estate of the intestate, and that his estate, wheresoever situate, is liable to pay his debts. Therefore the plaintiff, having once established his claim against the estate by the judgment of a court, should not be called on to make proof of it again. This argument assumes that the judgment is in rem, and not in personam, or that the estate has a sort of corporate entity and unity. But this is not true, either in fact or in' legal construction.

TLte judgment is against the person of the administrator, that he shall pay the debt of the intestate out of the funds committed to his care. If there be another administrator in another state, liable to pay the same debt, he may be subjected to a like judgment upon the same demand, but the assets in his hands cannot be affected by a judgment to which he is personally a stranger.

A judgment may have the ‘effect’ of a lion upon all the defendant’s lands in the state where it is rendered, yet it cannot have that effect on lands in another state by virtue of the faith and credit given to it by the Constitution and act of Congress. The laws and courts of a state can only affect persons and things within their jurisdiction. Consequently, both as to the administrator and the property confided to him, a judgment in another state is res inter alios acta.

It cannot be even prima facie evidence of a debt; for, if it have any effect at all, it must be as a judgment, and operate by way of estoppel.” 6 How. 60, 61. To the same effect are McLean v. Meek, 18 How. 16, 15 L. Ed. 277; Johnson v. Powers, 139 U S. 156, 159, 11 Sup. Ct. 525, 35 L. Ed. 113; Low v. Bartlett, 8 Allen, 259. Piad Ingersoll been indebted to these defendants, and had they recovered judgment in Montana against Harris, his- administrator appointed there, they could not have enforced that judgment here against Mrs. Ingersoll, the Massachusetts administi’atrix.

If judgment had gone in favor of Plarris in a suit brought by them against him in Montana, it would not have availed Mrs. Ingersoll, sued by them on the same claim in Massachusetts. But within his jurisdiction, and as to the property there situated, the “authority of each is paramount to the other.” 6 How. 59. All property, according to its locality, is deemed to pass to some one administrator, and, having been taken into his possession, it is wholly within his contro. and beyond the control of any other. His dealing with that property binds it not only in his jurisdiction, but everywhere it may be carried.

If he sells a horse, the vendee may take it to another jurisdiction, and may hold it against the administrator appointed there. If property situated in the jurisdiction of his appointment be taken from an administrator, the courts have held that He may follow it into another jurisdiction and there sue to recover it. Crawford v. Graves, 15 La. Ann. 243; Adams v. Batchelder, 173 Mass. 258, 259, 53 N. E. 824, 73 Am. St. Rep. 282. If the Montana administrator had transferred a note due from a resident of Montana, the transfer would be-valid as against all other administrators appointed elsewhere. Wilkins v.

Ellett, 108 U. S. 256, 259, 2 Sup. Ct. 641, 27 L. Ed. 718. If the Montana administrator had discharged a note which was assets in his hands, no administrator elsewhere could have sued upon it. Slocum v. Sanford, 2 Conn. 533. Accordingly, if an administrator sues upon a chose in action which is deemed to be assets in his jurisdiction, and bjr recovery merges the chose in action in a judgment, that judgment is assets in his hands, and may be sued upon elsewhere, even in a jurisdiction where he could not have brought suit upon the original claim. Biddle v. Wilkins, 1 Pet. 686, 7 L. Ed. 315; Moore v.

Petty, 135 Fed. 668, 68 C. C. A. 306; Talmage v. Chapel, 16 Mass. 71. That the administrator’s suit upon the judgment recovered may or must be brought in his own name, without qualification as administrator, is a requirement merely formal.'’ Hence it follows that, if Harris had recovered judgment in the Montana suit, he could have sued thereon in Massachusetts, notwithstanding the present complainant’s appointment as administratrix here.

Furthermore, it has been held'that, if one administrator has brought suit upon a chose in action situated in his jurisdiction, this suit is a bar to a suit brought upon the same claim by another administrator in his jurisdiction. Sulz v. Mutual Reserve Fund, 145 N. Y. 563, 40 N. E. 242, 28 L. R. A. 379; Merrill v. New England Mutual Life Insurance Co., 103 Mass. 245, 249, 4 Am. Rep. 548. This is true, though the original chose in action might have been deemed assets indifferently in either jurisdiction. 145 N. Y. 572, 573, 40 N. E. 242, 28 L. R. A. 379.

The New York case in effect is like the case at bar; for, if the pendency of the suit brought in Montana by Harris would defeat this proceeding, a judgment against him in that suit must have the same effect a fortiori. It remains only to consider if the chose in action sued on by Harris in Mpntana was there assets of Ingersoll’s estate in his hands. Dicey on the Conflict of Laws (Am. Ed.) p. 460. The defendants appeared there, and there carried on the litigation. Some of them were citizens of that state.

The proposition has not been disputed in argument, but has been everywhere assumed, and especially by the present complainant, who there began the suit which Harris carried on. Though she did not herself continue the Montana suit, yet, having procured Harris’s substitution in her place in the suit which she had begun, she cannot well say that the chose in action had not its situs i;n Montana and was not assets there. Most of the cases cited by the defendant and by the learned judge of the court below have been already referred to.

The debt of a person deceased, speaking generally, is due and may be sued on- wherever his. property is .found. Every administrator, yrherever appointed, is in privity with his intestate, and so is liable to pay his intestate’s debt out of the funds in his hands. Until the debt is discharged, the credit- or may sue administrators in as many jurisdictions as he can find them, since the debts of the intestate are owed, and so have their situs, in each and every one of these jurisdictions; but a given

article of the testator’s property, generally speaking, is not assets everywhere. It is ordinarily limited to a situs in one jurisdiction, and thus passes under the control of a single administrator. Even if_its situs beseemed originally indifferent as between two jurisdictions, yet. if it is brought into suit in one of these by an administrator appointed there, the suit is taken to fix its situs and to exclude any other administrator from its control. Sulz v. Mutual Reserve Fund, 145 N. Y. 563, 40 N. E. 242, 28 L. R. A. 379.

This is the necessary result of the independence of administrators appointed in different jurisdictions. One cannot sue upon a judgment obtained by another, because administrators have no privity with each other, and every

article of their intestate’s property belongs' to one or another of them independently, without right of interference in the rest. Rut the inability of one administrator to sue upon a judgment obtained by another does not empower the former to sue upon the original chose in action, which was the basis of the judgment. Debts owed to an intestate are not multiplied by the number of his administrators. There is but one debt, and when it has .come into the hands of the appropriate administrator other administrators are excluded from its control.

If he reduces it to judgment, it is merged in that judgment, not only in his jurisdiction, but everywhere. Conversely, if he seeks to collect an alleged debt found in his jurisdiction and judgment goes against him, the defendant is everywhere relieved. A judgment for the plaintiff in a given suit is binding only so far as a judgment for the defendant in the same suit has the like effect. Any other result would be intolerable.

Had Harris obtained judgment against these defendants in the Montana suit, he could have sued on it in Massachusetts in his own name, and the Massachusetts ad-ministratrix could not have sued on it in her representative capacity. If the complainant’s theory is sound, these defendants would then be liable in Massachusetts to two suits at the same time, one brought against them by Harris individually upon the Montana judgment, and another brought against them by Mrs. Ingersoll, as the Massachusetts administratrix, upon the original claim which had been merged in that judgment.

It follows that the matter herein litigated was adjudicated in Montana, inasmuch as the cause of action in the two proceedings was the same, the Montana judgment was rendered on the merits, and was so far between privies that the administratrix in Massachusetts is bound by the judgment rendered against the administrator in Montana. The decree of the Circuit Court is reversed, and the case is remanded to' that court, with directions to dismiss the bill, with costs, and the appellants recover costs of appeal.