Collier v. Seward

• Decision Date: 14 March 1912
• Citation: 113 Va. 228,74 S.E. 155
• Parties: COLLIER et al. v. SEWARD et al.
• Court: Virginia Supreme Court

74 S.E. 155

(113 Va. 228)

COLLIER et al.

v.SEWARD et al.

Supreme Court of Appeals of Virginia.

March 14, 1912.

1. Equity (§ 422*)—"Pinal Decree"—What Constitutes—"Interlocutory Decree."

A decree is interlocutory, and not final,-if the further action of the court in the cause, as distinguished from proceedings necessary to execute the decree, is necessary to give completely the relief contemplated by the court.

[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 932-944, 947-949; Dec. Dig. § 422.*

For other definitions, see Words and Phrases, vol. 3, pp. 2774-2798; vol. 8, p. 7663; vol. 4, pp. 3712-3715; vol. 8, p. 7692.]

2. Equity (§ 181*)—Answer—Time of Filing—"Final Decree."

The decree, in a suit by judgment creditors to subject to their liens defendants' interest in a trust estate, overruled a demurrer to the supplemental bill, amended and confirmed a commissioner's report of the liens and priorities of the creditors and of the judgment debtor's interest in the trust estate, determined what creditors were entitled to participate therein, found that partition could not be conveniently made, and that the rents would not satisfy the liens within five years, and that the other parties interested in the estate desired that one-eighth interest therein be allotted them upon paying its fair value, and decreed yiat they be permitted to do so by depositing the sum in a bank payable to the court, and appointed special commissioners to convey to such defendants such one-eighth interest in the trust estate, and required a report by the special commissioners as to how they had executed the decree. Held, that the decree was not final, so that defendants could file their answer, tendered at the following term of court, under Code 1904, % 3275, to the amended and supplemental bill, of which one the original bill was made a part.

[Ed. Note.—For other cases, see Equity, Cent. Dig. § 417; Dec. Dig. § 181.*]

Appeal from Hustings Court of Petersburg.

Action by J. W. Seward and others against Charles F. Collier and others. From a decree for plaintiffs, defendants appeal. Reversed and remanded, with directions.

The suit was instituted by judgment creditors for the purpose of subjecting to their liens the interest of a defendant in a testamentary trust estate.

E. P. Buford and Willcox & Willcox, for appellants.

Roper & Davis, Chas. E. Plummer, and W. B. McIlwaine, for appellees.

BUCHANAN, J. The first question to be considered in this case is whether or not the decree of January 19, 1911, is a final decree. If it is, the appellants were not entitled to file their answer, when tendered at the April term of the court following.

What constitutes a final decree in a cause has been frequently considered by this court, and the rule laid down by Judge Baldwin in Cocke's Adm'r v. Gilpin, 40 Va. 20, has been, as was said by Judge Staples in Ryan v. McLeod, 73 Va. 367, and reiterated by Judge Burks in Rawlings v. Rawlings, 75 Va. 76, "repeatedly recognized by this court, and is now the established doctrine."

That rule is as follows: "Where the further action of the court in the cause is necessary to give completely the relief contemplated by the court, there the decree upon which the question arises is to be regarded, not as final, but interlocutory. I say the further action of the court in the cause, to distinguish it from that action of the court which is common to both final and interlocutory decrees, to wit, those measures which are necessary for the execution of a decree that has been pronounced, and which are properly to be regarded as adopted, not in, but beyond, the cause, and as founded on the decree or mandate of the court, without respect to the relief to which the party was previously entitled upon the merits of his case."

The decree of January 19th overrules the demurrer to the amended and...