Cradle v. Cralle

• Decision Date: 01 December 1887
• Citation: 84 Va. 198,6 S.E. 12
• Parties: Cradle v. Cralle.
• Court: Virginia Supreme Court

6 S.E. 12

(84 Va. 198)

Cradle

v.Cralle.

Supreme Court of Appeals of Virginia.

December 1, 1887.

1. Judgment—Entry—Effect of—Subsequent Change in.

A decree for alimony, affirmed on appeal as to the date at which payments should commence, is final, and when, in subsequent proceedings in the trial court to ascertain its amount, payment is fixed as beginning at a different date, held, that such decree will be reversed.

2. Alimony—Decree for—Reasonableness of Amount.

Alimony of $150 per annum, allotted appellant's wife, he being of good business habits, and possessed of $3,800 worth of property at the date of divorce, held a reasonable allowance.

3. Same—Amount of—Evidence.

In proceedings to fix the amount of alimony, the admission in evidence of a decree in favor of appellant for a legacy, over objections by him on the ground that he had released his interest in the decree, but without proof that and when such release was made, held, proper..

4. Appeal—Exceptions not Taken Below—Commissioner's Report.

Objections to a commissioner's report, made for the first time on appeal, are not entitled to consideration, unless the report be erroneous on its face.

Appeal from circuit court, Nottoway county; S. S. Weisiger, Judge. In proceedings for allotment of alimony, Mrs. Louisa W. Cralle was decreed entitled to $150 annually, to be paid by George A. Cralle, who appeals.

H. L. Lee, for appellant.

W H. Mann, for appellee.

Lewis, P. By the decree of September term, 1882, it was decreed by the circuit court that the defendant was entitled to alimony to be paid by the plaintiff at the rate of $25 per month, such payments to commence "on the 1st day of October, 1882." And this decree on appeal was affirmed in every particular save one, this court being of opinion that the sum decreed by the lower court was excessive, because certain property acquired by the plaintiff after the date of the divorce decree formed in part the basis upon which the allowance decreed was estimated and determined. The case is reported in 79 Va. 182. After the case went back to the circuit court, it was referred to a commissioner to take an account of the property of which the plaintiff was possessed and entitled as of the date of the divorce decree, which was accordingly done; and the cause coming on to be heard, the report of the commissioner was confirmed, and it was decreed that the plaintiff pay to the defendant, as and for alimony, "the sum of one hundred and fifty dollars per annum from the 5th day of February, 1874;" the payments to be made quarterly. From this decree an appeal was allowed the plaintiff by one of the judges of this court.

I. The decree of September term, 1882, having ascertained and fixed the sum proper to be paid by the plaintiff to the defendant, and also the date at which the payments should commence, and this court having on the appeal affirmed that decree in the last-mentioned particular, it was not within the power of the circuit court, after the cause was remanded, nor is it now within the power of this court, to alter the decree in that or in any other particular in which it was affirmed. The question of the amount of the allowance wasleft open to depend upon the facts as they should thereafter appear in relation to the estate of the plaintiff as of the date of the divorce decree, but the question as to the date from which the payments should be made to commence was settled by the decree of affirmance, and cannot now be reopened. The authorities in support of this proposition are numerous. Many of them are cited in the opinion of the court, delivered by Judge Richardson at the present term, in the case of Savings Inst. v. McVeigh, 3 S. E. Rep. 885, and in Railroad Co. v. Casenove, Id. 433, recently decided at Staunton. The decree complained of is therefore erroneous in so far as it directs the payment of alimony to commence as of a date prior to the 1st day of October, 1882, and nothing more upon that point need be said.

2. In other respects the decree is unobjectionable. It appears from the report of the commissioner that at the time the decree of divorce was rendered the fair value of the plaintiff's property of all kinds was $3,800, and that he was then and is now "of good business habits and capacity." Among the property reported by the commissioner is the sum of $500, being one-fourth of a legacy of $2,000 bequeathed to the plaintiff and three others by the will of Mrs. Mary Carter, deceased, and for which a decree was rendered by this court in favor of the legatees in the case of Ferguson v. Epes, 77 Va. 499. To this report the plaintiff excepted on two grounds, as follows: "(1) Because there is no report as to the faculties and capacity of the defendant to earn money; (2) because there is no full and accurate inquiry and report as to the suit of Ferguson v. Epes, from which it would have appeared that the plaintiff got nothing under the said decree along with the other appellants, (legatees,) save Jas. H. Ferguson, to whom the other appellants, including the plaintiff, had released and assigned all their interest in the said suit in consideration of his taking the appeal and defraying the costs thereof." These exceptions the circuit court properly overruled. " The capacity of the defendant to earn money" was not a question in the case, and was therefore not a proper subject of inquiry by the commissioner. The only question under the decree of this court to be referred to a commissioner touching the quantum of the allowance to the defendant was the value of the plaintiff's property at the date of the divorce decree. All other questions relating to that subject were settled by the decree, which this...