Re: Hiram Phillips, of Polk County Georgia
(1) COL. WADDELL EXPLAINS.
The Garnishment Matter Viewed at Length.
A Full Statement of His Connection With the Phillips Estate-The Proper Disposal of the Funds Shown by the Records.
ATLANTA, Feb. 23.-Editor TELEGRAPH:
The recent controversy, growing out of a garnishment served on Governor Northen, in the case of Mrs. A. Colville, guardian, vs. E.H. Richardson, Sr. and J.O. Waddell, security, and the subsequent cards and interviews from Mr. Colville and myself in the TELEGRAPH and other papers are familiar to your readers.
It will be necessary to refer to them, as briefly as may be, to elicit the facts, as these facts appear of record. Believing that the public is more interested in them than any personal or abusive controversy I decline to answer Mr. Colville in kind, especially as the records of the court, as attested by the officers, and which are hereto attached, furnish conclusive evidence that the charges made against me are, to say the least, unfounded.
It will be remembered that my first and all subsequent utterances were to the effect that I had been informed that all the cases growing out of my suretyship for Dr. E.H. Richardson, Sr., deceased, were settled. Closer investigation shows that information to have been incorrect, and that $500 of that indebtedness remains to be paid. But this fact would not warrant the charge made by Mr. Colville that I had squandered a $40,000 estate of his grandfather.
There came into my hands first as guardian, and, second, as administrator of Hiram Phillips, the grandfather of Mr. Colville, $27,146.37. My returns and vouchers cover expenditures amounting to $27,298.27. Of the expenditures, $24,887.22 were returned to the ordinary and by him “examined, allowed and ordered recorded.” The balance, $2,961.05, was paid to the heirs, attorneys and small claims, and for which I am protected by proper and legal vouchers.
To show the condition of the estate of Hiram Phillips at the time I was appointed his guardian, and which shows the reason so small a sum was paid to the heirs of said estate, it is necessary to append the certificate of the clerk of the superior court of Polk county, giving the reason for my appointment:
“Records of Polk Superior Court.
Carrick, Hollis & Co. vs. Hiram Phillips.
Fishchel & Bro. vs. Hiram Phillips.
B.D. Gatewood vs. Hiram Phillips.”
The records of the above stated cases, as shown by minutes of the court, page 568, show that the attorney for Hiram Phillips, the Hon. J.W.H. Underwood, moved for the appointment of a guardian ad litem for Hiram Phillips, to prepare for the defense of said cases. The following order appears of record, same page:
“It is ordered by the court that John O. Waddell be and he is hereby appointed guardian ad litem to attend to the defense of said causes, and all others pending in any of this state.
Nov. 22, 1871.
(Signed) R.D. Harvey, J.S.C.R.C.”
Amounts of these claims and judgments:
Carrick, Hollis & Co. and Fishchel & Bro., petition and rule nisi, to foreclose mortgage….$7,853.24
Gordon, Rankin and Ordway vs. Hiram Phillips, complaint…..$301.80
S. Statelier & Co. vs. Hiram Phillips, complaint…..$338.17
B.D. Gatewood vs. Hiram Phillips, complaint…..$2,922.56
Total: $12,415.86
“John O. Waddell having been appointed guardian ad litem of Hiram Phillips, who has been declared an imbecile, it is ordered by the court that said John O. Waddell, guardian, be made party defendant.
(Signed) R.D. Harvey, J.S.C.R.C.”
Page 783, minutes of Polk superior court show that cases were then pending against Hiram Phillips amounting to between $10,000 and $15,000:
“Polk superior court, Feb. Term, 1872, Cedartown, Ga., Feb. 15, 1872.-Whereas there are pending in Polk superior court four important cases against Hiram Phillips, who has been declared to be an imbecile, and for whom John O. Waddell has been appointed guardian by the ordinary of Polk county, Ga., and, whereas, the suits in value claim to be a large amount, to wit: to a sum between ten and fifteen thousand dollars, and require to be defended; now, this memorandum witnesseth that John O. Waddell, guardian, and in his representative character as guardian only, has employed J.A. Blance and J.W.H. Underwood to defend said cases and to attend to any and all other cases that may arise concerning said Phillips’ business for the price of one thousand dollars, five hundred dollars each, one half of which is to be paid now, and the other half at the end of the litigation. In witness whereof the said John O. Waddell hath signed this memorandum as such guardian.
(Signed) John O. Waddell,
Guardian for Hiram Phillips”
“$250. Received of John O. Waddell, guardian of Hiram Phillips, two hundred and fifty dollars each in accordance with the foregoing agreement. Feb. 16, 1872.
(Signed) Joseph A. Blance and J.W.H. Underwood”
“Georgia, Polk County, Clerk’s Office, Superior Court - I, W.C. Knight, clerk of the superior court in and for said county, do hereby certify that the within and foregoing statements are true and correct copies taken from the minutes of Polk superior court.
Given under my hand and official seal of office, this the 17th day of Feb.1872.
(Signed) W.C. Knight, Clerk”
ORDINARY’S CERTIFICATE.
“The records of the court of ordinary of Polk county show, that on the 4th day of December, 1871, Hiram Phillips was adjudged an imbecile, and John O. Waddell was appointed his guardian. That appraisers were appointed to value the property of said Phillips, who returned property valued as following: Real estate, $31,000, all other property, $7,749.09. Total $37,749.09. That $3,500.25 of these assets, consisting of notes, book accounts and judgments were sold by order of court, and brought one dollar ($1.50) and fifty cents. According to law, a bond was required of said Waddell for the amount of forty thousand dollars.”
“On the 7th day of December, 1872, the said Waddell was appointed administrator of said estate, the said Phillips having died. The records show that on the 1st day of July, 1873, the said Waddell filed in this office his annual return, showing the amount of his receipts and expenditures, with proper vouchers to cover the same, which was “examined, allowed and ordered recorded by me. The aggregate receipts amounted to $16,444.87. The aggregated expenditures amounted to $14,053.65. The annual return of said Waddell made July 1, 1874, examined, allowed and ordered recorded, showed expenditures with proper vouchers, the sum of $795.97. On July 1, 1875, the said Waddell made his annual return, which was examined and allowed and recorded, which showed receipts to the amount of $10,700, and expenditures, with proper vouchers for $8,317. Return made August, 1877, which was allowed and ordered recorded, showed expenditures for said estate, with proper vouchers, to have been $640.50, and the amount allowed John O. Waddell as extra compensation for services rendered in superintending the plantation of said estate $500. Amount received…$27,146.57; Amount Expended…$24,337.23”
“State of Georgia, Polk County. - I, Joel Brewer, ordinary in and for said county, do certify that the foregoing is a correct exemplification from the records in my office of the annual returns of J.O. Waddell on the estate of Hiram Phillips, of said county, deceased, made the lst day of July, 1873, 1st July, 1874, 1st July, 1875, and the 7th of August, 1877, which were examined, allowed and ordered recorded according to law. I further certify that said Waddell is entitled to a commission for paying out $640.50 in last named return, which was not put in said return when made, which amount of commission is $15.04.
Given under my hand and seal of office, this 18th day of February, 1891.
Joel Brewer, Ordinary, Polk County, Georgia”
When I was appointed the guardian of Hiram Phillips his estate was hopelessly insolvent. Claims were pending in the courts against him, some covered by mortgage to the amount of $12,415.86. As guardian of J.R. and J.F. Colville he was indebted in the sum of $4.626.25, which, as his guardian, I paid to the newly appointed guardian of said wards, Mrs. A. Colville. The balance of the estate was paid out as indicated, as shown by vouchers, held by me, nearly seventy in all, and which are subject to the inspection of anyone who desires to see them.
One word and I am done. Returning from the surrender at Appomattox, without a dollar, nerved by a sense of duty to my wife and child, and deceived by the high price of cotton, I rented land and went to farming.
In this, I succeeded moderately well, until I consented to take charge of Phillips’ estate, and in injuring my own business by a division of time-up to this time, I had never had a case in court. The crash of 1873 and ‘74 carried thousands of farmers down. I was not an exception. I saw a plantation which I had bought, sacrificed for less than half its cost and value, the greater part to satisfy claims against unfortunate tenants, who were unable, by reason of short crops, unpropitious seasons, low prices, sickness and other causes to meet their debts. This is a familiar picture to farmers. It may not be to those who have never engaged in it. To these must be added the loss of my home by fire, with but slight insurance; the loss of a gin house with much of the crop, with insurance - and sickness continuing for years - cause me to owe money, more than I can meet at once, but which no amount of unjust and unkind criticism will prevent me from striving to pay. These debts cause me constant and keenest mortification and sleepless nights.
My residence in Atlanta is an enforced one, because, first, of the necessity of keeping my son near his surgeon, and second, the hope with close economy I may be able to support my family on my salary, and devote all rents to the payment of debts.
This public statement is due to me, my family and the good friends who have honored me.
Respectfully,
John O. Waddell
I respectfully ask all newspapers which have published articles tending to damage me to publish this in justice to me.
J.O. Waddell
Source: The Weekly Telegraph, Macon, Georgia, Wednesday, March 4, 1891; Pg. 2
NOTE: This microfilmed newspaper article was difficult to read the dollar amounts due to blurring, therefore, they may not be the exact and correct amounts published.
(2) Claiborne et al. v. Waddell et al.
(Circuit Court, N. D. Georgia. March 11,1892.)
1. Federal Courts—Jurisdiction—Citizenship—Dismissal or Party.
When, on arranging the parties according to their interests in the controversy,
the jurisdiction of the federal court will be taken away because of the citizenship
of one party, such party may be dismissed, and the question will then remain
whether she is a necessary party, Horn v. Lockhart, 17 Wall. 570, followed.
2. Same—Delay in Raising the Point.
In passing upon a question of jurisdiction the court will take into consideration
any excessive delay in raising the point.
In Equity. Bill by John M. Claiborne and others against John O. Waddell and others. Heard on motion to dismiss for want of jurisdiction.
The citizenship and residence of the parties is stated in the bill to be as follows: John M. Claiborne, guardian of the person and property of Sarah Vienna Phillips, is a citizen and resident of the state of Texas, his ward being a citizen and resident of Missouri. Margaret L. Guthie and her husband, who is joined with her, are citizens and residents of the state of Texas. All of said parties are complainants, and John 0. Waddell, William Peek, E. H. Richardson, Thomas Berry, Alfred Shorter, and John M. Berry, partners under the name and style of Berrys & Co., and Mrs. Augusta Phillips, who was formerly Mrs. Augusta Colville, citizens of and residing in the state of Georgia, in said northern district, are defendants. The purpose of the bill is to recover assets of the estate of Hiram Phillips from John 0. Waddell, who was his guardian, (Phillips having been adjudged a lunatic,) and afterwards his executor. The interest of Mrs. Phillips, who is made one of the defendants, was really with the complainants. It appears that she had an equal interest with each of the complainants in whatever might be recovered by the bill. This motion is made to dismiss the bill for want of jurisdiction on account of citizenship of the parties; the contention being that Mrs. Phillips should be a party complainant, and should now be considered such, and therefore her citizenship and residence in Georgia would defeat the jurisdiction.
Fulton Colville, for complainants.
B. H. Hill, for defendants.
Newman, District Judge. It will be perceived that this bill has been pending in court for 14 years, and no question of jurisdiction has ever been raised in it. The defendant Waddell, who now makes the question of jurisdiction, filed an answer to the bill in July, 1878. It seems clear that with the present parties to the case the court is without jurisdiction. In arranging the parties according to their interests, and as to their respective sides in the controversy, it will be necessary to place Mrs. Phillips with the complainants; and the fact of her residence and citizenship in this district will be fatal to the jurisdiction. Bland v. Fleeman, 29 Fed. Rep. 669; Covert v. Waldron, 33 Fed. Rep. 311; Rich v. Bray, 37 Fed. Rep. 273. Where there is great delay, as in this case, in raising the question of jurisdiction, the court will consider the delay in passing upon the question. See Deputron v. Young, 134 U. S. 241,10 Sup. Ct. Rep. 539. The counsel for complainants suggested to the court his right to dismiss as to Mrs. Phillips, which would obviate all difficulty as to the jurisdiction of the court on the ground of citizenship; and the question would then remain as to whether or not it is necessary to retain Mrs. Phillips as an indispensable party, under the equity practice of the court. In Horn v. Lockhart, 17 Wall. 570, a case very much like this, being a suit to recover assets of an estate in the hands of an executor, the suit was brought in Alabama, where the executor resided, and two of the parties made defendants resided in the state of Texas, which was the residence of the complainants. The objection to the jurisdiction was met by the dismissal of the suit as to the two defendants resident in Texas. The dismissal as to these parties, thereby obviating the question of jurisdiction, was sustained by the supreme court, and I am unable to see the difference in principle between that dismissal and the dismissal here of the case as to Mrs. Phillips. The two defendants as to whom that case was dismissed had interests identical with the interest of Mrs. Phillips in this case; and, if a decree could be rendered in that case without their presence as indispensable parties, I see no reason why it may not be rendered in this case. Upon the authority of the case just cited, I am of the opinion that, if counsel for complainants desire, an order may be taken, dismissing this case as to Mrs. Phillips; otherwise, the case must be dismissed for want of jurisdiction.
Source: The Federal Reporter, Volume 50, Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States, May-August 1892; Pgs. 368-369
