delivered the opinion of the court:
So far as the facts are concerned they may be regarded as settled adversely to the plaintiffs by the judgment of the Appellate Court. The only question, therefore, to be determined here is, whether the trial court ruled correctly on the propositions of law submitted on the trial. Upon this branch of the case it is assigned as error that the court erred in refusing the fourth and fifth propositions of law requested by the plaintiffs, as follows:
4. “If the evidence shows that plaintiffs were acting as attorneys for defendants in looking after the replevin suits out of which the moneys in controversy were collected, and that they, in good faith, collected and paid them over to defendants, and that by the decree of the United States court in a suit to which plaintiffs were parties and of which defendants had notice, though they had no definite knowledge as to its entire scope, it was determined that these moneys were not the property of the defendants but must go to other creditors, and the plaintiffs, being thus liable therefor, paid the same under the decree, then they can recover them from the defendants.” (Held as a correct proposition of law, but not warranted by the evidence in this case.)
5. “If, prior to the time the Circuit Court of the United States for the Northern District of Illinois ordered and decreed that the money in controversy in this suit should be paid over to the clerk of that court, the plaintiffs notified the defendants that they should look to them to reimburse them in case such decree was made, and the defendants had a reasonable opportunity to appear and defend therein, then the defendants are so far bound by decree against the receiver’s administratrix that plaintiffs are entitled to recover the amount which they so paid on account thereof, out of moneys collected by them under the judgment against Fay & Conkey, assigned to the defendants.” (Refused.)
As to the fourth proposition, it was not refused, but, on the other hand, the court held it to be a correct proposition of law. The fact that the court added that the proposition was not warranted by the evidence in the case, cannot be regarded as a ruling of the court that the proposition did not announce a correct principle of law and that it was refused. Section 42 of the Practice act requires the court to write on the propositions submitted, “refused” or “held,” and we regard it the duty of the court, in the trial of a cause, to follow the requirement of the statute and endorse on the propositions of law “refused” or “held,” and nothing more. But the mere fact that the court may add, after the word “held,” a remark of explanation, cannot be construed into a refusal of the proposition. The court held the law as requested by counsel, but at the same time was of the opinion that under the facts as established by the evidence the law relied upon did not apply.
We now come to the fifth proposition, which the court refused. It will be observed that this proposition ignores entirely the important question whether the relation of attorney and client ever existed between the plaintiffs and the defendants. If the plaintiffs were not employed by the defendants to collect the money which they collected and paid over, we perceive no ground upon which they can be held liable; and yet the proposition renders the defendants liable if they had notice of the action in the Circuit Court of the United States, and a reasonable opportunity to appear and defend before the decree was rendered. It will be remembered that the money paid over to the defendants was collected on a judgment in favor of Graves against Fay & Conkey, which never belonged to the defendants. The judgment was obtained by the plaintiffs acting as attorneys for Graves. The circuit and Appellate Courts have found that the plaintiffs were not employed by the defendants, but that they acted for Graves in obtaining the judgment and collecting the money. The Graves judgment was at one time assigned to defendants as collateral security, but subsequently, and before the money was collected, it was reassigned to the First National Bank, and the latter held it in trust when the money was collected, and the money was paid over to the defendants, no doubt by direction of Graves. If Graves saw proper to employ the plaintiffs, as attorneys, to collect money from Fay & Conkey on a judgment in his favor, and pay the same over to the defendants in payment of an indebtedness held by the defendants against Fay & Conkey, upon which Graves was security, upon what ground can it be held that in the event that some court subsequently renders a decree that the money should have been applied in another direction, the defendants, who received the money and applied it, should be required to refund it? We think it is apparent, when the transaction is viewed in its true light, that the money turned over by the plaintiffs to the defendants was paid them as money collected for Graves in a judgment in his favor, and it was paid in liquidation of Graves’ indebtedness to the defendants. The proposition is fatally defective in authorizing a recovery, regardless of the fact whether the money in question was collected and paid over by plaintiffs as attorneys for the defendants or not, and we think it was properly refused.
It also appears that the decree in the Corbin case was ultimately taken to the Supreme Court of the United States and reversed, (see Graves v. Corbin, 132 U. S. 571,) but it will not be necessary to allude to this branch of the case, as what has been said disposes of the case.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.