Colvin v. Butler

• Citation: 143 S.E. 333
• Parties: COLVIN et al. v. BUTLER.
• Decision Date: 24 May 1928
• Court: Virginia Supreme Court

143 S.E. 333

COLVIN et al.

v.BUTLER.

Special Court of Appeals of Virginia.

May 24, 1928.

Error to Circuit Court, Madison County.

Suit by L. P. Butler against Louanna Col-vin and Will A. Cook, executors of F. M. Colvin, deceased. Decree for plaintiff, and defendants bring error. Modified and affirmed.

Shackelford & Robertson, of Orange, and Will A. Cook, of Madison, for plaintiffs in error.

E. H. De Jarnette, Jr., of Orange, for defendant in error.

HOLT, J. The parties to this litigation, plaintiff and defendants, will be designated as they were in the trial court.

The following statement in the petition for appeal gives us a fairly comprehensive view of the situation here:

"L. P. Butler filed a bill in equity to recover of the executors of F. M. Colvin, deceased, $1,300, paid by Butler to said F. M. Colvin in his lifetime on a contract of sale of land by said Colvin to said Butler, the said $1,300 being a part of the purchase money. The bill alleges there was a verbal contract, under which Butler, vendee, could at any time he desired abandon his purchase and receive back any money he had paid; that he decided he did not want the land, and so notified said Colvin through Colvin's son, January 5, 1921; that Colvin died on the 8th of January, 1921; that Butler subsequently repeatedly requested a return of his money, etc.; and in his prayer for relief he alleges that the verbal agreement under which he purchased was void, for which reason the $1,300 should be returned to him. To this bill the defendants filed their demurrer and answer. The answer denied the right of the complainant to recover, stating the reasons, and alleging that, if complainant was per-mitted to recover, he should be required to pay the damages set up in the answer. The cause came to hearing on the demurrer, demurrer was sustained, and complainant given leave to amend, which was done, but no very material change was made. Consequently there was a demurrer to this amended bill, and the judge in vacation, of his own motion, ordered the case to be transferred to the law side of the court, and plaintiff was given leave to amend to 'conform to the practice of law in such cases.' The declaration was filed, bill of particulars and pleas and the case, went to trial before a jury. But, after the examination of the plaintiff, the court, of its own motion, transferred the case back to the 'chancery side of the court, with leave to the plaintiff to amend his amended and supplemental bill heretofore filed.' To this action of the court defendants excepted. This amendment was made by writing it on the bottom of the 'amended and supplemental bill.' Defendants then moved to dismiss the said amended and supplemental bill so amended, but such motion was overruled. Then was filed a demurrer thereto, but the bill was retained and defendants held to answer, etc. Whereupon defendants filed their demurrer and answer, denying complainant's right to recover, giving reasons for such denial, and setting up defendants' right to damages and rents and profits, in case complainant be held to have the right to recover the said purchase money."

As a matter of fact, plaintiff notified Colvin of his desire for rescission in the latter part of 1920. The farm in controversy contained about 224 acres, and the price agreed upon was $7,500. It was situate in Madison county, and, at the time of sale, the plaintiff, who was Colvin's son-in-law, lived at Warrenton in Fauquier county.

The cause then came on to be heard upon its merits, on depositions and exhibits, etc., upon consideration whereof the court, on November 1, 1926, entered a decree by way of judgment in favor of the plaintiff for $1,-300, with interest from November 1, 1926.

The defendants' position in short form is this: They say that the decree which transferred the cause to the law side of the court was a final one, and that it is now too late to question that order. They further say that the court was in error when it undertook to retransfer this litigation from the law docket to the chancery docket, for the reason that, when the case went back, it was met with a finding to the effect that equity had no jurisdiction, which finding was final, and amounted to an adjudication of that proposition. The net result of this, if the defendants are right, is that plaintiff's case can never be heard upon its merits, for the cause is plainly one which addressed itself to equity. Such a construction of section 6084 of the Code would be unlooked for and curious. This attempt of the trial court to conform to the provisions of a statute highly remedial would result in denying to the plaintiff any hearing at all. If the statute in issue had never been enacted, and if the plaintiff had first brought a suit in equity which the court of its own motion erroneously dismissed for want of jurisdiction, an action at law might afterwards have been properly dismissed for the same reason, and he (the plaintiff) would have been without remedy had he not appealed from the first order in time. It was to prevent such a miscarriage of justice that the statute was passed.

In Hodges v. Thornton, 138 Va. 112, 120 S. E. 865, the court said:

"Was the decree under review an appealable decree?

"The question must be answered in the affirmative.

"It is argued that inasmuch as the decree did not dismiss the case, but merely transferred it to the law side of the court, it was not a final decree and hence not appealable as such.

"We think that it was a final decree in that it denied the whole of the relief prayed in the bill and in effect dismissed the bill and remanded the plaintiffs to another forum, namely, the law side of the court. But if it was not a final decree, it certainly adjudicated the principles involved, and hence was an appealable decree. Johnson v. Mundy, 123 Va. 730, 97 S. E. 564."

If this be construed to definitely state that the order first transferring the cause was technically speaking a final decree, then that statement was dictum, and not necessary in any decision of the matter then in judgment. All that the court had to decide was that the decree under review was an appealable decree, and it is in fact manifest that the court did not desire to commit itself definitely further. All statements of law applicable to a case must be read in connection with the facts.

Final decrees are appealable, and interlocutory decrees sometimes are, but in the latter case the party aggrieved is not bound to appeal within six months, but, where the requisites therefor exist, may do so within six months after a final decree has been entered in the cause. Barton's Chancery Practice (3d Ed.) 949; Southern Ry. Co. v. Glenn, 98 Va. 309, 36 S. E. 395.

Thomas Branch & Co. v. Riverside & Dan River Cotton Mills, Inc., 147 Va. 522, 137 S. E. 614, is very much in point. That was a suit in equity afterwards transferred to the law side of the court. The statute of limitations was pleaded, but the court said that it was obvious the amended pleading related back to the date of the filing of the original bill, and that this was always true, unless the declaration stated a new cause of action. See, also, Friederichsen v. Renard, Ex'r, 247 U. S. 207, 38 S. Ct 450, 62 L. Ed. 1075.

We should, of course, in dealing with a statute, follow its purpose whenever it is possible to do so, and it is likewise manifest that it would here be in the interest of justice to give to it a liberal, and not a technical, construction. This can readily be done by dealing with this entire record as part andparcel of one transaction. If we treat the decree as appealable and not final, then it may still be brought under review. Such error as was committed when the cause was transferred from equity to law was corrected when it was transferred back from law to equity. This we hold is reasonable. It does no violence to the language of the statute, and it does what should be done whenever it is possible to do it. It gives to the plaintiff one fair trial, something to which he is entitled in good conscience and under the statute. If this be not true, then a statute designed as a...