Craig v. Williams 1

• Decision Date: 01 February 1894
• Parties: CRAIG . v. WILLIAMS et al.1
• Court: Virginia Supreme Court

18 S.E. 899

90 Va. 500

CRAIG .

v.WILLIAMS et al.¹

Supreme Court of Appeals of Virginia.

Feb. 1, 1894.

Jurisdiction on Appeal—Consolidated Suits— Attachment in Equity — Return to Rules-Chattel Mortgage — Execution in Sister State—Validity.

1. Where the interests are separate on appellants' part, the decree may be reversed as to one, and dismissed as to another, because the subject, as to him, is less than the jurisdictional amount.

2. Where the amount in controversy equals $500 as to one of appellants, the question is properly before the court as to him; and when the questions as to all the appellants are identical, and the claims have been consolidated and heard together, the decree will be valid or invalid as to all, and the decision on appeal will conclude the rights of all in like condition, though some of the claims may be less than $500.

3. Code 1887, § 2905. providing, in regard to an attachment, that, "if issued in a pending suit, it shall he returnable to a term of the court in which the same is pending, " does not authorize the return of an attachment in equity Page 900

debts appear to be disputed or denied, but the point of contest between the several plaintiffs and the defendant Craig is as to the priority of the homo attachments, issued and levied in the county of Franklin, and the lien of the mortgage, executed in the state of South Carolina, and duly recorded according to the laws of that state. The circuit court held the foreign mortgage ineffectual for want of proper recordation in the state of Virginia, and sustained the lien of the attachments, and decreed accordingly for their several debts in favor of the attaching creditors; whereupon John H. Craig applied for, and obtained, an appeal to this court.

The first question which arises here on the appeal is by certain attaching creditors, — Oglesby, Tutwiler & Co., —and others who, like them, have debts of less amount than $600, it being conceded that the debts of Williams, White & Co. and Sims & Woell exceed the said sum of $500, which is necessary to give this court jurisdiction of such an appeal, which is merely pecuniary; and they, the said Oglesby, Tutwiler & Co., and others in like situation, insist that the appeal should be dismissed as to them, for the stated reason that the amount involved is less than the amount required to sustain the jurisdiction of this court. This court has no jurisdiction to hear an appeal which is merely pecuniary, and is less in amount than $500. In order that the defendant may enjoy the right of appeal when it depends on the amount, the judgment or decree must be for at least $500, principal and interest, exclusive of cost, and that the plaintiff may enjoy it, his claim must be not less than $500, principal and interest; and, if several creditors are seeking, by creditors' bill, to subject property to their debts, no one of which amounts to as much as $500, although, in the aggregate, the sum is much greater, there can be no appeal on the creditors' part, because their claims are independent one of another; but the owner of the property, when the total of debts is as much as $500, although severally the claims be less, may appeal. 4 Minor, Inst. S57; Umbarger v. Watts, 25 Grat. 107; Railroad Co. v. Colfelt, 27 Grat 779, 7S0; Devries v. Johnston, Id. SOS; Gage v. Crockett, Id. 735. Aud, where the interests are distinct and separate on the part of the appellants, the decree may be reversed as to one, and dismissed as to another, as having been improperly awarded, because the subject of controversy, as to him, is less than $500, (Cocke v. Minor. 25 Grat. 260;) but, where the amount in controversy involved in the appeal is above the jurisdictional amount as to one of the appellants, the question is properly before this court as to that one; and when the questions as to all others are identical, and the claims have been consolidated and heard together, the validity or invalidity of the decree will affect them all, and involve the validity of the de cree as to all, and in all respects. The interests in such case are such that they cannot be severed in any court where they are considered, and the decision here as to the rights of one will conclude the rights of all in like condition. Witz v. Osburn, 83 Va. 227, 2 S. E. 33. We must therefore overrule the motion stated above, —dismiss the appeal as to some of the appellees for want of jurisdiction.

There are two causes of error assigned by the appellant. The first is that the attachments sued out by the appellees were invalid because they are made returnable to rules, and, being attachments in equity, they are authorized to be made returnable to a term of the court, being issued in a pending suit. The second is that priority was given to the attachments because they were issued and levied before the foreign mortgage was recorded, according to the laws of this state.

Upon the first question, —as to the validity of the attachments when they are, as here, returned to rules instead of to a term of the court, —we will remark that the statute of this state requires (section 2905) that "if issued in a pending suit it shall be returnable to a term of the court in which the same is pending." The former law of this state added, after the foregoing, the words, "Or to some rule day thereof." There is, therefore, no longer any lawful authority to return such an attachment to rules. It is argued that this is a mistake—an accidental omission—on the part of the lawgivers, because it would render the law nugatory in many cases like this, where attachments were issued after suit was brought, because, a summons having been issued, served, and returned, the requirement in the law that the clerk should indorse on a subpoena an order, to the officer to whom it is addressed, to attach the property, would be an ineffectual direction when the attachment was subsequent, and could refer only to writs of attachment, and not to such as this. But (1) the act expressly declares that any attachment issued under that chapter (chapter 141, Code) shall be, if in a pending suit, returnable to a term of the court in which the same is pending; and (2) the supposed difficulty lying in the way of indorsing it on the subpoena in the case is answered by the provision of section 2904. The provision is: "Upon such affidavit, the plaintiff may require the clerk to indorse on a summons an order to the officer to whom it is directed to attach, " etc. Nor is there any difficulty in the way in the subsequent provision that "any attachment under this...