Olson v. Maryland Casualty Co.

CRAIL, J. This is an appeal from a judgment against the defendants in an action upon a bond wherein the defendants agreed to pay a specified sum, upon condition however that if defendant Allison faithfully executed the duties of Ms office as receiver according to law and obeyed all lawful orders of the court made in the receivership action then the obligation should be void. The plaintiffs were the successors of defendant Allison as receivers for the oil company. It was alleged in plaintiffs’ complaint that in the receivership action in which the bond was given the court had ordered defendant Allison upon his final accounting to pay to plaintiffs three certain sums of money, arid that he had failed to do so although demand had been made upon him therefor. These and other allegations were made, sufficient to entitle the plaintiffs to judgment on the pleadings in the absence of a denial or a special defense. For answer the defendants admitted the allegations of the complaint and set up four separate defenses as follows: (1) that the receiver had complied with all of the orders of the court on the current accounts, which said compliance made it impossible for said receiver to comply with the order made on the final account; (2) that all of said orders on the current accounts of the receiver were made upon notice to or upon stipulation of all of the parties litigant in said action, and that the final account and the order thereon were heard and made respectively without notice to or the right to ap[423]pear in anywise or at all-—to the surety company; (3) that its principal, Charles F. Allison, had fully and fairly complied with all of the orders of the court; and (4) that the order of the judge, hearing the final account, violated section 1, Amendment 14, of the Constitution of the United States, in that said order was made and entered without service of process, papers, notices, etc.—upon defendant surety company and that this defendant was deprived of the equal protection of the laws.

Upon motion of the plaintiffs all of these defenses were stricken and judgment on the pleadings was entered against the defendant, because of which the defendants complain.

None of the defenses was of any validity, for the following reasons among others: Number (1) because it was immaterial that defendants had complied with other orders of the court; the bond was conditioned -upon compliance with all orders; compliance with former orders did not make it impossible to comply with the final order which was for the payment of money merely. Numbers (2) and (4) because again it was immaterial about former orders and because the surety company was not entitled to notice of the hearing on the final account of the receiver. Number (3), while the defendants alleged by way of mere conclusion that Allison had fully and fairly complied with all the orders of the court, yet they admitted in the same sentence of the answer “that said, or any moneys, referred to by plaintiffs in said amended complaint, have not been paid by Charles F. Allison to plaintiffs”, i. e., that they had not complied with the order on the final account.