Andrews v. Cahoon

• Decision Date: 07 March 1955
• Docket Number: Nos. 4330,4331,s. 4330
• Citation: 86 S.E.2d 173,196 Va. 790
• Court: Virginia Supreme Court
• Parties: WILLIEN ANDREWS, EXECUTRIX OF THE ESTATE OF HORACE J. ANDREWS, DECEASED v. WILLIS E. CAHOON AND THOMAS L. WOODWARD, EXECUTORS OF THE ESTATE OF A. M. MCBRIDE, DECEASED, ET AL. O. W. WILLIAMS AND LOUIS KOUTOULAKOS v. WILLIS E. CAHOON AND THOMAS L. WOODWARD, EXECUTORS OF THE ESTATE OF A. M. MCBRIDE, DECEASED, ET AL. Record

Page 173

86 S.E.2d 173

196 Va. 790

WILLIEN ANDREWS, EXECUTRIX OF THE ESTATE OF HORACE J. ANDREWS, DECEASED v. WILLIS E. CAHOON AND THOMAS L. WOODWARD, EXECUTORS OF THE ESTATE OF A. M. MCBRIDE, DECEASED, ET AL.

O. W. WILLIAMS AND LOUIS KOUTOULAKOS v. WILLIS E. CAHOON AND THOMAS L. WOODWARD, EXECUTORS OF THE ESTATE OF A. M. MCBRIDE, DECEASED, ET AL.

Record Nos. 4330, 4331.

Supreme Court of Appeals of Virginia

March 7, 1955.

Thomas, Strauss & Waller, for appellant, Andrews, Executrix.

J. Lindsay Almond, Jr., Attorney General; Sands, Marks & Sands; Wicker, Baker & Shuford; J. Calvitt Clarke, Jr.; Louis Koutoulakos; John D. Clark; George E. Haw; Charles Henry Smith, for appellees, Cahoon and Woodward, Ex'rs.

Louis Koutoulakos; Paul Varoutsos; Homer Thomas; Miles Spence Bray, for appellants, Williams and Koutoulakos.

J. Lindsay Almond, Jr., Attorney General; Sands, Marks & Sands; Wicker, Baker & Shuford; Brockenbrough Lamb, Jr., for appellees, Cahoon and Woodward Ex'rs.

JUDGE: EGGLESTON

EGGLESTON, J., delivered the opinion of the court.

On May 3, 1951, A. M. McBride, ¹ suing for the benefit of himself and all others similarly situated, filed his bill of complaint in the court below alleging that The Preferred Accident Insurance Company of New York, a corporation organized under the laws of that State, with authority to transact an indemnity insurance business, and licensed to do such business in Virginia, had been adjudicated to be insolvent by proceedings in the State of New York, and that its authority to do business in Virginia had been revoked; that pursuant to the requirements of the laws of Virginia, the Insurance Company had previously deposited with the Treasurer of Virginia certain securities in the face amount of $45,000 'for the protection of citizens of this State' against its liability to them; that the plaintiff is a citizen of Virginia and has a claim against the Insurance Company, and pursuant to the laws of this State has a lien on the securities so deposited with the State Treasurer; and that other citizens of Virginia are similarly situated, with claims against the Insurance Company and a lien on such securities.

The Insurance Company and the Treasurer of Virginia were made parties defendant to the bill. The prayer was that a receiver be appointed to take charge of all of the assets of the Insurance Company located in this State, including the securities in the hands of the State Treasurer; that the business of the Insurance Company in this State be wound up and liquidated under the supervision and control of the court; and that its assets in Virginia be ratably distributed to the plaintiff and other creditors in such proportions as might be determined to be right and proper.

A decree was entered appointing Thomas L. Woodward and Brockenbrough Lamb, Jr., as special receivers of all of the assets of the Insurance Company 'located within the Commonwealth of Virginia. ' ²

The Treasurer of Virginia filed an answer admitting that the Insurance Company had deposited with him certain securities in the face amount of $45,000. The Insurance Company filed no answer to the bill, but through its counsel, E. Ballard Baker, a member of the Richmond bar, appeared and took active part in the proceedings hereinafter referred to.

On July 17, 1951, a decree was entered referring the cause to Sam B. Witt, Jr., a commissioner in chancery, with directions to take an account, among others, of the assets of the Insurance Company within the jurisdiction of the court and all claims against it 'arising from or growing out of its business operations in Virginia, with the priorities, if any, as between the said claims.'

On November 14, 1952, the commissioner filed a report listing the claims of thirty-three creditors totaling $37,010.84, which had been properly proven 'as liens against the statutory deposit.'

The report also listed fifteen claims totaling $28,297.11, as those which had been 'brought to the attention of the commissioner but as to which no sufficient proof has been offered, or otherwise not provable herein. ' Among these was the claim of 'Horace J. Andrews Estate v. O. W. Williams' for $7,500, and that of 'Louis Koutoulakos, Attorney at Law, * * * Re: Andrews Estate v. O. W. Williams,' for $750. Exceptions were filed to the disallowance of these two claims. Moreover, Willien Andrews, executrix of the estate of Horace J. Andrews, deceased, filed a petition in the cause, alleging that on October 21, 1952, she had obtained a judgment against Williams in the United States District Court for the Eastern District of Virginia, at Alexandria, for the sum of $7,500 for the wrongful death of Andrews who was killed on March 24, 1951, in a motor vehicle collision in which a truck owned and operated by Williams was involved that at the time of the accident Williams was protected by a liability insurance policy issued by the Insurance Company and covering the truck; that in due course Williams had reported the accident to the Insurance Company; and that by letter dated October 22, 1952, Woodward, one of the special receivers, had been notified of the judgment.

Williams joined in the prayer of the petition of the executrix that this claim be allowed and paid in the receivership proceedings.

On December 29, 1952, a decree was entered directing Witt, the commissioner in chancery, to report upon whether the Andrews claim should be paid. Depositions were taken before the commissioner with respect to the Andrews claim of $7,500 and that of Koutoulakos for $750. Shortly after the hearings had been concluded the commissioner filed a report disallowing both claims. From a decree confirming this report and disallowing the claims, Williams, Andrews' executrix and Koutoulakos have appealed.

Counsel for the Insurance Company and counsel for five creditors whose claims had been approved by decrees in the lower court, have filed a joint motion to dismiss the appeal as improvidently awarded, on the ground that all of the creditors whose claims had been approved and allowed were not served with copies of the notice of appeal and assignments of error, designation of parts of the record to be printed, and the petitions for appeal, as required by the rules of this court.

The record shows that copies of these documents were mailed or delivered to counsel for these parties: McBride, the plaintiff; Jesse W. Dillon, the State Treasurer; The Preferred Accident Insurance Company of New York and Alfred J. Bohlinger, its New York liquidator; and each creditor whose claim was contested before the commissioner and allowed by decrees of the lower court. The appellants insist that this is a sufficient compliance with the rules.

Rule 5:1, § 4, provides in part that 'No appeal shall be allowed unless, prior to the expiration of sixty days after final judgment, counsel files with the clerk notice of appeal and assignments of error. * * *'

Rule 5:1, § 6(a), provides that, 'Not less than twenty days before the record is transmitted [to the clerk or a justice of the appellate court], counsel for appellant shall file with the clerk [of the trial court] a designation of the parts of the record that he wishes printed. * * *'

Rule 5:3, § 4, provides: 'Before any petition for appeal is presented or filed, a copy thereof shall be mailed or delivered to opposing counsel in the trial court and the petition shall aver the date of such mailing or delivery. * * * ' (Italics supplied.)

Rule 5:1, § 2, defines 'counsel' to include 'a party not represented by counsel. ' It further provides: "File with the clerk' means deliver to the clerk a paper, a copy of which has been served on or delivered to opposing counsel.' (Italics supplied.)

Rule 5:3, § 2(a) provides: 'If there were more than two parties in the court below, there must be appended to the petition for appeal a certificate giving the names of the parties joining in the appeal and the names of the parties against whom the appeal is sought. The clerk of this Court will rely on the information so furnished in issuing the summons required by Code, Section 8-490.'

Code, § 8-490, referred to in Rule 5:3, § 2(a), provides in part that the clerk of the Supreme Court of Appeals 'shall issue a summons against the parties interested, other than the petitioners, that they may be heard, * * *.'

In D. F. Tyler Corp. v. Evans, 156 Va. 576, 579, 580, 159 S.E. 393, we held that the process or summons required by Code, § 8-490, 'simply matures the case for hearing' in this court, and that its issuance and service are not essential to the perfecting of a writ of error or appeal. See also, Hackley v. Robey, 170 Va. 55, 58, 59, 195 S.E. 689, 690.

But we have held that the requirement for filing the notice of appeal and assignments of error under Rule 5:1, § 4, supra, is mandatory and jurisdictional, for under the express terms of the rule 'No appeal shall be allowed' unless such notice of appeal and assignments of error are filed within the prescribed time. Skeens v. Commonwealth, 192 Va. 200, 203, 64 S.E. (2d) 764, 766; Harlow v. Commonwealth, 195 Va. 269, 271, 77 S.E. (2d) 851, 853.

We have further held that the requirement for filing a designation of the parts of the record to be printed, under Rule 5:1, § 6(a), supra, is likewise mandatory and jurisdictional. Avery v. County School Board, 192 Va. 329, 335, 64 S.E. (2d) 767, 771.

The appellees are correct in their position that in a creditors' suit, such as that with which we are here concerned, all persons who appear and prove their claims before the commissioner under an order of reference becomes parties to the cause. Lile's Equity Pleading and Practice, 3d Ed., § 426, p. 252. Consequently, where a reversal or modification of the decree appealed from will adversely affect the rights of such creditors, they, or counsel representing their interest in the litigation, must be served with the notices required of the appellant in perfecting an...