Smith v. Litton
| Decision Date | 12 November 1936 |
| Citation | 188 S.E. 214 |
| Court | Virginia Supreme Court |
| Parties | SMITH. v. LITTON. |
Error to Circuit Court, Russell County; A. G. Lively, Judge.
Proceeding by P. H. Smith, trustee of the estate in bankruptcy of the Dixie Splint Coal Company, Incorporated, against Scott Litton, to set aside and annul a purported judgment confessed by the Dixie Splint Coal Company, Incorporated, in favor of Scott Litton. Judgment was entered, and P. H. Smith, etc., brings error.
Affirmed.
Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.
C. W. Hamilton and M. M. Heuser, both of Norton, for plaintiff in error.
I. M. Quillen, of Lebanon, and M. M. Long, of St. Paul, for defendant in error.
Plaintiff in error filed in the circuit court of Russell county his motion to set aside and annul a purported judgment con fessed by the Dixie Splint Coal Company, Incorporated, in favor of Scott Litton, for the sum of $33,468.89.
It appears that Litton was the president and chief stockholder of the corporation, and P. H. Smith, trustee in the instant case, was secretary and treasurer of the corporation. Acting as secretary and treasurer, Smith, on the 2d day of June, 1933, confessed the judgment in question. No question is made as to the validity of Litton's claim against the corporation or his right to obtain a lien in his favor against other creditors.
On March 19, 1934, an execution was issued on the Litton judgment and levied upon the tangible personal property of the corporation. On the 31st day of May, 1934, an execution was issued upon a judgment for $9,000 obtained by Mrs. Jean McNeil Pepper, executrix, against the corporation. On the 14th day of June, 1934, the property was sold under the execution issued on the Litton judgment. At this sale Litton became the purchaser, at the price of $3,200.
In the meantime the Clinchfield Coal Company notified the sheriff of Russell county that by reason of a prior lien upon the property of the Dixie Splint Coal Company, it was entitled to the sum of $2,-153 out of the proceeds of sale. Thereupon the sheriff instituted interpleader proceedings in the circuit court, to which Litton, Jean McNeil Pepper, executrix, and the Clinchfield Coal Company were made parties defendant.
The executrix filed her answer in the interpleader proceeding, whereby she agreed, without prejudice, that the Clinch-field claim should be paid. Again, on November 1, 1934, after the Dixie Splint Coal Company had become a bankrupt, by order duly entered in the interpleader proceeding, the executrix agreed that the residue of the fund derived from the sale under the Litton execution should be paid to P. H. Smith, trustee.
It clearly appears from the record that Jean McNeil Pepper, executrix, is the sole creditor represented by the trustee in this litigation, and there can be no other inference than that this proceeding is for her sole benefit. This view is fortified by the fact that the executrix has dismissed a bill filed by her to have the Litton judgment vacated and annulled.
It was the contention of the plaintiff in the lower court that the Litton judg-ment is void, for the reason that it was confessed on behalf of the corporation by P. H. Smith, secretary and treasurer, and not by a duly appointed attorney in fact, in compliance with the provision of section 6130a of the Code 1936.
The record showing the confession of judgment fails to disclose any appointment of or confession by an attorney in fact, and upon that record the trial court held the judgment void and subject to attack by the trustee in bankruptcy. No proper cross-error having been assigned, it becomes unnecessary to discuss this holding of the trial court in favor of the plaintiff.
The first contention of the defendant is that whether or not the Litton judgment is void, plaintiff, by his action in filing his petition in the interpleader proceeding, seeking the custody of the fund arising from the sale under the Litton execution, is estopped from questioning its validity. The second contention is that Jean McNeil Pepper,...
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Pepper v. Litton
... ... 1 While this suit was pending and in anticipation that Pepper would recover, Litton caused Dixie Splint Coal Company to confess a judgment in Litton's favor in the amount of $33,468.89, representing alleged accumulated salary claims dating back at least five years. This was done by P. H. Smith, secretary and treasurer of Dixie Splint Coal Company, who, according to the District Court, was 'an employee of Litton and subservient to the latter's will.' This was on June 2, 1933. Execution was issued on this judgment the same day but no return was made thereon, Litton waiting 'quietly until ... ...
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Heiser v. Woodruff
... ... The Court of Appeals for the Tenth Circuit reversed. 150 F.2d 869. Relying upon our decisions in Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281, and Prudence Realization Corporation v. Geist, 316 U.S. 89, 62 S.Ct. 978, 86 L.Ed. 1293, it held that the ... The judgment was affirmed on these grounds by the Virginia Supreme Court. Smith v. Litton, 167 Va. 263, 188 S.E. 214. On objections to the claim on the Litton judgment the district court, sitting in bankruptcy, disallowed the ... ...
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Sauder v. Ferguson
... ... will not be permitted later to show its invalidity[,] for he is estopped); Smith v. Litton, 167 Va. 263, 266, 188 S.E. 214, 215 (1936) (A man cannot 771 S.E.2d 672 say at one time that the transaction is valid and thereby obtain ... ...
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Litton v. Pepper, 4378
... ... The judgment was confessed in the Circuit Court for Russell County, Virginia, on July 1, 1931 for the sum of $33,468.89 on behalf of the Dixie Splint Coal Company, Inc., the bankrupt, by P. H. Smith, secretary-treasurer of the company, in favor of Scott Litton, its president and controlling stockholder. The claim was based on alleged arrearages of salary due Litton as president and similar arrearages due Smith as secretary-treasurer, and by him assigned to Litton. The circumstances relating to ... ...