Barley v. Duncan

• Decision Date: 24 February 1941
• Citation: 13 S.E.2d 294
• Parties: BARLEY et al. v. DUNCAN et al.
• Court: Virginia Supreme Court

13 S.E.2d 294

BARLEY et al.

v.DUNCAN et al.

Supreme Court of Appeals of Virginia.

Feb. 24, 1941.

Appeal from Corporation Court of City of Alexandria; Wm. P. Woolls, Judge.

General creditor's suit against James M. Duncan, Jr., administrator, and others, heirs at law of James M. Duncan, Sr., deceased, wherein Louis C. Barley and others, executors of Harley P. Wilson, deceased, filed a petition alleging that judgments against James M. Duncan, Sr., were unpaid and had been assigned to their decedent. From an adverse decree, Louis C. Barley and others, executors, appeal.

Affirmed.

See, also, 13 S.E.2d 298.

Argued before HOLT, HUDGINS, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Richard R. Farr, Wilson M. Farr, and Hardee Chambliss, Jr., all of Fairfax, for appellants.

Robinson Moncure, Thomas, Strauss & Backus, J. Randolph, F. Davis, Howard W. Smith, Jr., and Albert V. Bryan, all of Alexandria, for appellees.

HUDGINS, Justice.

Harley P. Wilson was the assignee of several judgments obtained by other parties against James M. Duncan, Sr. Both the assignee-creditor and the judgment-debtor died. Another creditor instituted a general creditor's suit against the administrator and heirs at law of James M. Duncan, Sr. The executors of Harley P. Wilson filed a petition in the cause alleging that the judgments were unpaid and had been assigned to their decedent.

The cause was referred to a commissioner to make the usual inquiries. He reported that the several judgments assigned to petitioners were barred by the limitations prescribed in Code, section 6477. The executors of Harley P. Wilson excepted to the report on the ground that one year from the death of Harley P. Wilson and one year from the death of James M. Duncan, Sr., should be excluded in the computation of time. The trial court overruled the exceptions and decreed that the judgments were barred by the statute of limitations. From that decree this appeal was allowed.

The dominant question presented is whether the period of one year from the death of a party should be excluded in computing the time within which a judgment may be enforced.

The limitation of time within which suits and personal actions may be brought, with the exceptions prolonging the time in certain instances, was codified by the Code re-visors of 1849 in chapter 149 of the Code of 1849. The same revisors codified, in chapter 186, the acts prescribing the time in which executions, actions or scire facias could be issued or brought on judgments, with stated exceptions extending the time in certain cases. From the language used in the different chapters, it clearly appears that the Code revisors and the legislature intended for the acts of limitation, with the exceptions, to apply, in one instance, to proceedings before judgment is obtained, and, in the other, to proceedings after the claim has been reduced to judgment. The same distinction, regarding time within which rights and remedies may be enforced before judgment and after judgment, was followed by the Code revisors of 1860, cc. 149, 186.

The emergency created by the War Between the States caused the legislature to adopt numerous "stay laws, " prohibiting the enforcement of judgments and executions in certain cases, and extending the time in which any claim might be reduced to judgment and the time in which judgments might be enforced. One such measure was adopted March 14, 1862, Acts 1861-2, p. 99, providing:

"Be it enacted by the general assembly, that the period between the seventeenth day of April Anno Domini one thousand eight hundred and sixty-one, and four months after the ratification of a treaty of peace between the Confederate States of America and the United States of America, shall be excluded from the computation of the time within which, by the terms or operation of any statute or rule of law, it may be necessary to do any act or to commence any action or other proceeding to preserve or to prevent the loss of any civil right or reme-dy."

This act was amended in 1863, Acts 1863-4, p. 41, and again in 1866, Acts 1865-6, p. 183. These acts dealt with the time to be excluded from computation in stated limitations to "commence any action or other proceeding or to do any other act to preserve or to prevent the loss of any civil right or remedy." The Code revisors of 1887 codified this act in section 2919 with another act. The latter, as codified, read: " * * * and the period between the second day of March, eighteen hundred and sixty-six, and the first day of January, eighteen hundred and sixty-nine, shall be excluded from the computation of time within which, by the operation of any statute or rule of law, it may be necessary to commence any proceeding to preserve or prevent the loss of any right or remedy."

This latter provision, which is not so broad in its terms as the first, was amended in 1888, Acts 1888, p. 345, by adding one year from the qualification of a personal representative to the period of exclusion. The act of 1896, Acts 1895-6, p. 331, changed the commencement of this extra year of exclusion from "the qualification of the personal representative" to "the death of any party." The former provision of Code, section 2919, was omitted by the Code revisors of 1919 so that at present the only provision of these acts remaining is found in section 5809 of the Code of 1919, reading as follows:

"The period of one year from the death of any party shall be excluded from the computation of time within which, by the operation of any statute or rule of law, it may be necessary to commence any proceeding to preserve or prevent the loss of any right or remedy."

The Code revisors of 1887, as other Code revisors had done, codified the provisions of the acts dealing with judgment liens and executions, and the time within which they might be enforced, under a separate chapter, ch. 174, Code of 1887. Sections 3577 and 3578 state the time within which an execution, scire facias or action may be issued or brought on a judgment, and the exceptions extending the time in certain stated contingencies. Section 3577 of this Code contains an amendment adopted in 1870 extending the time within which writs of fieri facias might be issued.

Appellants contend that the exclusion of one year from the death of a party, provided in 5809, applies to the time within which an execution might be issued or a judgment enforced, as provided in section 6477, which was formerly section 3577 of the Code of 1887.

The same contention was made in James v. Life, 92 Va. 702, 24 S.E. 275; however, the court disposed of the issues in that case on other grounds and left the question now under consideration unanswered. Judge Buchanan, speaking for the court in Fadeley v. Williams, 96 Va. 397, 31 S.E. 515, said that, where the nominal plaintiff and the beneficial plaintiff, in an action in which a claim had been reduced to judgment, had both died before a scire facias was issued, only one year should be excluded. That case was finally decided on the distinction stated in section 3577 of the Code of 1887 between the time allowed for the issuance of a writ of fieri facias and the time allowed for issuing a writ of scire facias. However, some parts of the language used in the opinion indicate that the court at that time held the view that the provisions of section 2919 modified the provisions of section 3577.

Later, this question was fully discussed by Judge Kelly in Steffey v. King, 126 Va. 120, 101 S.E. 62, 63. The pertinent part of the opinion is as follows:

"This brings us to the final question in the case, which is this: Did the court err in holding that the period of one year from the death of Mrs. Kasey should be excluded in computing the time during which the statute of limitations had been running in favor of the defendants?

"The ruling of the court on this question was based upon section 2919 of the Code. That section, as originally enacted, was known as the 'stay law, ' and in its original form, so far as material to this case, is as follows:

" 'The period between the seventeenth day of April, eighteen hundred and sixty-one, and the second day of March, eighteen hundred and sixty-six, shall be excluded from the computation of the time within which, by the terms or operation of any statute or rule of law, it may be necessary to commence any action or other proceeding or to do any other act to preserve or prevent the loss of any civil right or remedy or to avoid any fine, penalty or forfeiture; and the period between the second day of March, eighteen hundred and sixty-six, and the first day of January, eighteen hundred and sixty-nine, * * * shall be excluded from the computation of time within which, by the operation of any statute or rule of law, it may be necessary to commence any proceeding to preserve or prevent the loss of any right or remedy.'

"This section of the Code was amended in 1888 (Acts 1887-88, p. 345 [Code...