Barnes v. Am. Fertilizer Co

• Decision Date: 17 December 1925
• Citation: 130 S.E. 902
• Parties: BARNES et al. v. AMERICAN FERTILIZER CO.
• Court: Virginia Supreme Court

130 S.E. 902

BARNES et al.

v.AMERICAN FERTILIZER CO.

Special Court of Appeals of Virginia.

Dec. 17, 1925.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Alimony.]

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Consent Decree.]

Error to Circuit Court, Charlotte County.

Petition for attachment by the American Fertilizer Company against O. O. Barnes, principal defendant, and Laura E. Barnes, codefendant, wherein Laura E. Barnes and others filed a joint petition, claiming interest in property levied on, and praying to be made parties and allowed to defend their title. Judgment for plaintiff, and defendants bring error. Reversed.

George E. Allen, of Victoria, for plaintiffs in error.

J. Kent Early, of Charlotte, and Leake & Buford, of Richmond, for defendant in error.

CHINN, J. The material facts of this case, as disclosed by the record, are as follows:

On November 9, 1923, the American Fertilizer Company (defendant in error here) filed its petition for attachment against O. O. Barnes, principal defendant, and Laura E. Barnes, codefendant, alleging a debt to be due said company by O. O. Barnes; that said Barnes is not a resident of the state of Virginia; and that said Laura E. Barnes is indebted to and has in her possession property of O. O. Barnes, real and personal, which is sought to be attached.

A writ of attachment was accordingly issued and levied upon certain real estate situated in the town of Keysville, Va., containing seven acres more or less, together with the improvements thereon. The codefendant, Laura E. Barnes, filed an answer under oath to the petition, denying that she is indebted to or has in her possession any property belonging to O. O. Barnes, and alleging, in addition to other matters, that the property soattached belonged to respondent and her children, L. C. Barnes, Otis Barnes, and Wilmer Barnes, the last two being infants, by virtue of certain decrees entered in a suit for divorce previously pending between said O. O. Barnes and the respondent.

The above-mentioned L. O. Barnes and the infants, Otis Barnes and Wilmer Barnes, by next friend, also filed a joint petition in the proceedings, claiming an interest in the property levied on, upon the same grounds as alleged in the answer of Laura E. Barnes, and praying to be made parties and allowed to defend their title to said property.

It appears from said answer and petition that O. O. Barnes instituted a suit for divorce against his wife, Laura E. Barnes, on July 27, 1921, and, on August 29, 1921, a decree was entered therein settling the property rights between the parties, and awarding the custody of the infant son Wilmer Barnes to the mother; that on October 4, 1921, a second decree was entered in the cause granting O. O. Barnes a divorce a mensa et thoro from Laura E. Barnes, and ratifying in all particulars the provisions of the previous decree as to the property rights and other collateral matters therein adjudicated; that on January 2, 1922, said O. O. Barnes and Laura E. Barnes filed their joint petition in said divorce cause, praying that so much of the decree of October 4, 1921, as granted said husband a divorce from his wife be revoked, and on the same day a decree was entered accordingly.

O. O. Barnes having been proceeded against by order of publication, and failing to appear, all matters of law and fact were submitted to the court, without the intervention of a jury, whereupon the court rendered judgment for the American Fertilizer Company in the sum of $6,075.72, with interest, and further adjudged the property levied on and in dispute to be "the property of O. O. Barnes, subject to the contingent right of dower of the codefendant, Laura E. Barnes, and liable to be subjected to the plaintiff's debt." It is to that judgment this writ of error was awarded.

Certified copies of the decrees and joint petition in the divorce proceedings were exhibited with Mrs. Barnes' answer, and are as follows:

"Virginia:

"In the Circuit Court of the County of Charlotte.

"O. O. Barnes v. Laura Barnes.

"Decree in Vacation August 29, 1921.

"This cause came on this day to be heard upon the motion of the defendant, Laura Barnes, duly executed upon the complainant, O. O. Barnes, 10 days prior to this date, that she would ask for the entry of a decree herein for temporary alimony, suit money, attorneys' fees, and other relief in this cause, upon the complainant's bill, and was argued by counsel.

"Upon consideration whereof, it appearing to the court that protracted litigation concerning the property rights of the parties to this cause would consume the bulk of the estate of the complainant, O. O. Barnes, and that, in order to avoid this result, counsel for the parties have undertaken to agree upon a fair and equitable division of said property rights, as follows, to wit: The complainant, O. O. Barnes, shall grant to his wife, the said Laura Barnes, for and during her natural life, or until her lawful remarriage, with remainder to their children upon her remarriage or death, whichever shall happen first, the home place in Keysville, Va., upon which his said wife and children now reside; that he shall pay to the defendant's attorney of record, Mr. H. E. Lee, the full sum of $250, in full of his services rendered and to be rendered by him to the said defendant in this cause; that he shall pay an account at the store of D. S. Gauling, Keys-ville, Va., for necessaries furnished the defendant for herself and children living with her in a sum not to asceed $240; that the custody of the youngest Sciald, Wilmer, shall remain with the defendant two-thirds of the time and with the complainant one-third of the time, unless for good cause subsequently shown there is a decree determining otherwise; that the said O. O. Barnes shall support and maintain the said child, Wilmer, until otherwise decreed by a court with competent jurisdiction, until the said child shall become self-supporting; that in the meantime, until otherwise decreed, the said O. O. Barnes shall pay to the defendant, on the 1st day of each month hereafter, the full sum of $15 for the support and maintenance of the said child; that the marital rights of each party to this suit in and to property owned by the other be hereby extinguished; that as to all property of whatsoever nature and wheresoever situated now owned by either of the parties hereto, or to be hereafter acquired by either, each of the said parties hereto shall be free and discharged of all claims or rights of the other by virtue of the marital rights growing out of the aforesaid marriage in the bill in this cause mentioned:

"The court doth adjudge, order, and decree that the said compromise agreement in reference to the said property rights be and the same hereby is ratified and confirmed, and that, in full for all claims for alimony, suit money, and support, the said Laura Barnes is hereby granted and allotted, out of the estate of said O. O. Barnes for and during her natural life, or until she remarries, whichever shall happen first, with remainder to their children born of the aforesaid marriage, the following property, to wit: That certain lot or parcel of land in the town of Keysville, Va., Charlotte county, on the Keysville and Meherrin road, adjoining the lands of S. R. Tuggle and others, which was conveyed to the said O. O. Barnes by deed dated December 31, 1918, and of record in Charlotte court clerk's Office Deed Book No. 71, p. 280, to which reference is hereby made for a more particular description of the said property; that the said defendant is also granted the custody of the said child, Wilmer, for two-thirds of the time, and the complainant, O. O. Barnes, for the remaining one-third of the time, until otherwise decreed by this or some other court of competent jurisdiction in the premises; thatthe said O. O. Barnes do pay to the said Laura Barnes for the support and maintenance of the said Wilmer Barnes the sum of $15 per month, payable on the 1st of each month hereafter, until otherwise decreed by a court of competent jurisdiction; that the said O. O. Barnes do pay to H. E. Lee, Esq., attorney of record for the defendant, Laura Barnes, the full sum of $250, in full of his fee for his services to the defendant rendered and to be rendered; that the said O. O. Barnes pay to D. S. Gauling. of Keysville, Va., not exceeding $240, in full of the account of the defendant with the said Gauling for necessaries furnished her for herself and two children living with her; that the marital rights of each party to this suit in and to the property owned by the other party be and the same hereby are extinguished; that, as to all property of whatsoever nature and wheresoever situated now owned by either of the parties hereto, or to be hereafter acquired by either, each of the said parties hereto shall hold the same free and discharged of all claims and rights of the other party growing out of the said marriage relation, and this case is continued generally for further proceedings to be had therein not in conflict with law."

"Virginia:

"In the Circuit Court of Charlotte County.

"O. O. Barnes, Complainant, v. Laura E.

Barnes, Defendant.

"Decree in Vacation October 4, 1921.

"This cause came on this day in vacation, to be again heard upon the papers formerly read, proof of the legal service of due notice upon the defendant in person, in writing, that the bill and proceedings in this case would be this day presented to the judge of the circuit court of Charlotte county for action thereon, the depositions of witnesses, the answer of the defendant, this day filed by leave of court, and was argued by counsel.

"On consideration whereof, and it appearing to the court from the evidence in this cause, independently of the admissions of either party in the pleadings, or otherwise, that the said parties were lawfully married on the 20th day of December, 1898; that both the...