C. P. Morrison & Co v. Leach *

• Decision Date: 23 February 1904
• Citation: 55 W.Va. 126,47 S.E. 237
• Court: West Virginia Supreme Court
• Parties: C. p. MORRISON & CO. et al. v. LEACH et al.*

47 S.E. 237

55 W.Va. 126

C. p. MORRISON & CO. et al.

v.LEACH et al.^*

Supreme Court of Appeals of West Virginia.

Feb. 23, 1904.

DECREE—MOTION TO REVERSE—APPEAL.

1. Section 5, c. 134, Code 1899, in requiring "reasonable notice to the opposite party" of a motion to reverse a decree upon a bill taken for

confessed, demands such notice to any party who has an interest in the maintenance of the decree, whether plaintiff or defendant.

¶ 1. See Equity, vol 19, Cent. Dig. § 1045.

2. An appeal lies from a decree reversing a decree upon a motion under Code 1899, c. 134, without any motion to reverse being first made in the circuit court.

3. There can be no appeal from a decree against a party on a bill taken for confessed as to him until a motion to reverse shall be first made in the circuit court. If such an appeal is taken without such motion, it will be dismissed, as improvidently granted, without considering the merits of the appeal.

Dent, J., dissenting.

(Syllabus by the Court.)

Appeal from Circuit Court, Ritchie County; M. H. Willis, Judge.

Bill by C. P. Morrison & Co. and another against Minerva Leach and others. Decree for plaintiffs, and defendants appeal. Reversed.

V. B. Archer and William Beard, for appellants.

Van Winkle & Ambler, Merrick & Smith, and W. W. Jackson, for appellees.

BRANNON, J. A bill in equity filed in the circuit court of Wood county by C. P. Morrison & Co. and John A. Page, suing for themselves and all other creditors of Thompson Leach, deceased, against Minerva Leach, executrix of Thomas Leach, and others, stated that the plaintiffs were creditors of Thompson Leach, and that said executrix had before that filed a bill to convene the creditors of Leach, fix their debts, sell his real estate, and apply the assets to the payment of such debts, and that a decree had been made fixing debts against the estate—among them, those of Morrison & Co and Page—and also a large debt in favor of the Parkersburg National Bank, and directing Leach's real estate to be sold by the executrix, and that she had sold the real estate, and that the sales were confirmed, and that the assets were not sufficient to pay the debts in full. The bill further stated that Minerva Leach, as executrix, gave bond, with Dave D. Johnson and J. L. Buckley as sureties; that she had failed to comply with the decree by applying the assets coming to her hands as directed by it, and had wasted the assets; that notes given by purchasers of the realty to the executrix had been turned over to J. L. Buckley, or the Parkersburg National Bank, to be held by them as collateral security for their debts; and that there had been paid to Buckley and Johnson and the Parkersburg National Bank, out of the assets, money in excess of the ratable portion going to them. The bill prayed that the executrix and her bondsmen be held liable for such assets, and that the Parkersburg National Bank and other creditors who had received more than their proper pro rata shares of the assets be held liable therefor. The said Johnson and Buckley were sureties in the executorial bond of the executrix. Upon the bill of Morrison & Co. and Page, taken for confessed as to the Parkersburg National Bank, a decree was pronounced against Mi-nerva Leach, Dave D. Johnson, and J. S. Buckley, by reason of the executorial bond, for $3,878.72, to be paid to Levi Lewis as a special commissioner constituted by the decree to make distribution of the funds as directed by the decree; and the decree further required that the Parkersburg National Bank pay into the hands of said Lewis, on account of money received from the estate of Leach in excess of its pro rata share of the assets, $2,122.38, which, when paid, should be a credit on the $3,878.72 decreed against Leach, Johnson, and Buckley. After this decree the bank moved the circuit court to reverse the decree for certain causes, giving notice of the motion only to the plaintiffs, Morrison & Co. and Page, and giving no notice to Minerva Leach or Lewis, and upon such motion a decree was entered reversing the above-mentioned decree so far as it required said bank to pay said sum of $2,122.30. Later still a decree was entered dismissing the bill so far as it sought to make said bank liable to Leach's estate or its creditors. From the two last mentioned decrees Minerva Leach appeals, and Levin Smith cross-assigns error therein.

Section 5, c. 134, Code 1809, provides that a decree entered upon a bill taken for confessed may be reversed on motion, but that "reasonable notice to the opposite party, his agent or attorney, " of such motion must be given. "Opposite party, " under this statute, does not mean only the plaintiff, but any party to the suit who has an Interest in upholding the decree sought to be reversed, whose pecuniary or property interest would be prejudiced by reversal. The word "opposite, " as used in the statute, means opposite in interest. The statute as to depositions requires notice to the "adverse party." I do not think a deposition can be read against any party without notice to him, no matter whether he is plaintiff or defendant It cannot possibly be thought that a decree can be reversed without notice to a person Interested in its maintenance. He has no day in court. It would take his property without due process of law. We cannot give the statute a construction which would militate against the Constitution and inflict gross injustice. Minerva Leach had a deep, actual interest in having the decree against the bank maintained, because the sum decreed against it operated as a partial payment on the sum decreed against her, and increased the assets of the estate in which she was distributee, to say nothing of her right as executrix to represent the estate. The decree of reversal as to her was void—a simple nullity. Though that decree is a nullity, an appeal lies from it, because a null decree may be assailed collaterally, or directly by appeal, or by bill of review, where such bill of review suits the case. McCoy v. Allen, 16 W. Va. 724. It cannot be said that Minerva Leach must first herself move the circuit court to reverse the decree of reversal, since it was rendered in absence of appearance by her to the motion. Any one has a right to appeal from an erroneous decree, as a general principle, whether on a bill taken for confessed or on appearance; but chapter 134 curtails this right of appeal in case of a decree on a bill taken for confessed to the extent that it requires first an unsuccessful motion in the circuit court But this applies only to cases upon a bill taken for confessed. It is so limited. It does not apply to an erroneous decree upon a motion to reverse under chapter 134. From such decree an appeal at once lies. That chapter gives it, as well as chapter 135. Midkiff v. Lusher, 27 W. Va. 439. The circuit court could not, for want of notice to Minerva Leach, decide upon anything assigned as ground to reverse the decree, because It had no jurisdiction; nor can we do so.

We cannot say whether the decree dismissing the bill as to the bank is right or wrong, because Minerva Leach has made no motion to reverse it in the circuit court, it being a decree in the absence of her appearance. Bock v. Bock, 24 W. Va. 586; Forest v. Stephens, 21 W. Va. 316. Whether by reason of this decision the decree dismissing the case as to the bank is made null and void, because of the finality of the first decree ending the case, which decree is reinstated by this decision, or merely erroneous, we do not say. Whatever its status, we cannot pass on it, for want of such motion.

The decree of the 21st day of June, 1900, is reversed so far as it sustains the motion of the Parkersburg National Bank to reverse the decree pronounced in this cause on the 23d day of February, 1899, and reverses so much of the latter decree as ordered said bank to pay $2,122.30 to Special Commissioner Levin Smith, and said motion is overruled, which is ordered to be certified to said circuit court. No remand.

DENT, J. I must dissent in this case. The bill was taken for confessed as to Minerva Leach. She never appeared in the cause, except to make an exception to a commissioner's report, which was sustained in her favor. So the cause in all other respects stands on bill taken for confessed. On the 21st day of February, 1899, a decree was entered against the Parkersburg National Bank for the sum of $2,965.42, to be paid to Levin Smith, special receiver, to be distributed in certain proportions among a large number of creditors of Thompson Leach, deceased; and, if collected and so distributed, Minerva Leach was to have credit therefor on a large debt decreed against her. There was no decree in her favor against the Parkersburg National Bank, and she was only collaterally interested in such decree, while the plaintiff and all the other creditors of Thomas Leach, deceased, were directly interested therein. On the 29th day of April, 1899, another order was entered in the cause award-ing execution against the Parkersburg National Bank for the sum aforesaid. The cause was continued on the docket for a final distribution of the funds, and for the future report of the special receiver. On the 5th day of March, 1900, the Parkersburg National Bank filed its notice of error in the decree of the cause, which it had given to the plaintiffs, the parties at whose instance the decree was entered against it. The motion to correct the decree was then submitted to the court, who took it under advisement. On the 21st day of June, 1900, the court entered another decree, reciting that "this cause came on again this the 21st day of June,...