Campbell v. Johnson

Decision Date27 November 1961
Docket NumberNo. 5339,5339
Citation203 Va. 43,122 S.E.2d 907
CourtVirginia Supreme Court

George P. Smith, Jr. (E. C. Wingfield, on brief), for the appellants.

John T. Camblos (Jack N. Kegley; Michie, Taylor, Camblos & Deets, on brief), for the appellees.


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

J. D. Johnson and Myrtle D. Purvis, partners trading as Purvis and Johnson, hereinafter referred to as the partnership, filed their bill in chancery in the Circuit Court against Martha Ruth Campbell and her father and mother, Harrison D. Campbell and Ethel H. Campbell, hereinafter referred to as the Campbells.

The bill alleged that Martha Ruth Campbell, while employed as a cashier in the retail business of the partnership, unlawfully took and embezzled money belonging to the partnership in the amount of at least $16,000; that the money was converted to the use of herself and her parents; that part of the money was used to purchase and improve real estate titled in the name of Martha Ruth Campbell; part was used to purchase two motor vehicles; part was used to buy a pony and a horse; and that part was placed in certain banks in Charlottesville in the separate or joint accounts of the Campbells.

The bill prayed that the above property be declared held in trust for the partnership and that the Campbells be required to convey and deliver the same to the partnership; that the Campbells be required to make an accounting of the money embezzled; that they be restrained from disposing of any assets during the litigation; and further, that a deficiency judgment be granted against the Campbells for any sums shown to be due.

The Campbells filed a demurrer to the bill in which they asserted that the allegations were insufficient to show the creation of any trust cognizable in equity; that the relief sought was purely legal; that complainants had a complete adequate remedy at law, and that the bill on its face disclosed that the various causes of action were improperly joined in the proceeding.

The court overruled the demurrer and allowed the Campbells ten days within which to file an answer or other pleadings. Whereupon an answer was filed on behalf of Harrison D. Campbell and Ethel H. Campbell. Martha Ruth Campbell filed a plea denying that she had unlawfully taken money belonging to the partnership. To this plea the partnership filed a general replication, and Miss Campbell demanded a trial by jury on the issue raised by the plea as allowed by § 8-213, Code of Virginia, 1950, which provides:

'A plaintiff in equity may take issue upon a plea, and either party may have such issue tried by a jury.'

A pre-trial conference was held at which time the court ordered that two questions be submitted to the jury, to-wit: (1) Whether Miss Campbell had unlawfully taken money from the partnership, and if so (2) the amount of money so taken. At this time counsel for the partnership vigorously objected to the court's ruling, urging that only one question should be submitted to the jury, i.e., whether Miss Campbell had taken money belonging to the partnership. They duly noted their objection and exception to the court's ruling that both questions should be submitted.

According to the brief filed by the Campbells, 'The case came on for trial before a jury on June 14, 1960, and continued the better part of three days. Voluminous testimony was introduced by both sides and numerous exhibits were introduced in evidence' (none of which is in the record). At the conclusion of the evidence the jury was instructed as above indicated, to ascertain (1) whether or not Martha Ruth Campbell had unlawfully taken money from the partnership, and (2) if she did unlawfully take money, how much did she take.

Some time after the case had been submitted to the jury, he jurors returned into court with a verdict reading: 'We the jury are hopelessly deadlocked.' The court refused to accept the verdict and instructed them to return to their room for further deliberation. When the jury retired, counsel for the partnership moved the court that the jury be instructed that they might return a verdict on the first question only. Over the objection and exception of the Compbells the jury was called back before the court and instructed as follows:

'Lady and gentlemen of the jury, you will recall that the court instructed you that there were two questions for you to determine, one, whether there had been an unlawful taking, and second, if so, how much was taken.

'Now, if you can agree as to the first question but cannot agree as to the second you may find a separate verdict on the first question without finding on the second.'

The jury retired and later returned the following verdict: 'We, the jury, find the defendant, Martha Ruth Campbell, guilty of unlawfully taking money from Purvis and Johnson.'

Whereupon, the Campbells renewed their objection to the ruling of the court and noted an exception thereto. They then moved that a new jury be impaneled and a new trial had. This motion was overruled.

The court entered the decree complained of whereby it was ordered that the verdict of the jury be received and judgment entered thereon, and that the plea of Martha Ruth Campbell be overruled, giving her ten days to file an answer.

Upon the filing of the answer the case was further heard by the court. It was agreed that the court need not again hear the testimony previously introduced, with the understanding that the Campbells did not waive the objection and exception previously taken.

The court later entered a decree adjudicating that the partnership have judgment against Martha Ruth Campbell in the sum of $15,000, plus interest and costs, impressing an equitable lien upon the real estate, a Ford car, $100 in money, the horse and pony, and two bank accounts.

Four assignments of error are relied upon, the first being: 'The bill of complaint should have been dismissed because it does not present a proper case for equitable jurisdiction.'

This contention was abandoned in argument before us. It was conceded that equitable jurisdiction was necessary because, though law might have furnished...

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19 cases
  • Our Lady of Peace, Inc. v. Morgan
    • United States
    • Virginia Supreme Court
    • August 30, 2019
    ...See 1 J.A. at 215-16.8 Averments and proof on a plea in bar should be examined claim by claim. See, e.g. , Campbell v. Johnson , 203 Va. 43, 46-48, 122 S.E.2d 907 (1961) (focusing on distinct claims raised in a complaint). As we have often stated, when a trial court hears no evidence on a m......
  • Those Certain Underwriters at Lloyd's v. DVO, Inc.
    • United States
    • U.S. District Court — Western District of New York
    • July 17, 2020
    ...if it "constitutes in itself a complete defense to the bill, or to that part of the bill to which it is pleaded." Campbell v. Johnson , 203 Va. 43, 122 S.E.2d 907, 910 (1961) (citation omitted).4 Daily Energy states that the choice of law provision cited in Plaintiff's Counterstatement of U......
  • Smith v. McLaughlin
    • United States
    • Virginia Supreme Court
    • February 26, 2015
    ...[either] a complete defense to the [complaint], or to that part of the [complaint] to which it is pleaded.” Campbell v. Johnson, 203 Va. 43, 47, 122 S.E.2d 907, 910 (1961) (emphasis added) (internal quotation marks and citation omitted). That is, a plea in bar can be sustained even if it pr......
  • Sullivan v. Jones
    • United States
    • Virginia Court of Appeals
    • April 13, 2004 the plaintiff's right of recovery. The moving party carries the burden of proof on that issue of fact. See Campbell v. Johnson, 203 Va. 43, 47, 122 S.E.2d 907, 909 (1961). Where no evidence is taken in support of the plea, the trial court, and the appellate court upon review, must rely s......
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