Crickmer v. Thomas.

• Decision Date: 06 December 1938
• Docket Number: (No. 8824)
• Citation: 120 W.Va. 769
• Parties: Vera R. Crickmer v. C. R. Thomas et al.
• Court: West Virginia Supreme Court

120 W.Va. 769

Vera R. Crickmer

v.C. R. Thomas et al.

(No. 8824)

Supreme Court of Appeals of West Virginia.

Submitted October 25, 1938.

Decided December 6, 1938.

1. Judgments

"A law or decretal judgment, based on evidences of indebtedness specified in Chapter 89, Acts of the West Virginia Legislature, Second Extra. Session, 1933, amending Code 1931, 56-4, is neither void nor voidable simply because it does not recite a compliance with the provisions of said act of the legislature." Newhart et al. v. Penny backer, Judge, et al., 120 W. Va. 774, decided contemporaneously with this case.

2. Judgments

"A judgment, valid on its face and rendered by a court of general jurisdiction having jurisdiction of both parties and subject matter, is not open to collateral attack." Neiuhart et al. v. Pennybacker, Judge, et al., 120 VV. Va. 774, decided contemporaneously with this case.

3. Judgments

In a suit by a judgment lien creditor, brought for the purpose of having set aside conveyances as fraudulent, a defense that plaintiff's judgment is invalid simply because it does not recite on ita face compliance with Chapter 89, Acts West Virginia Legislature, Second Extra. Session, 1933, amending Code 1931, 56-4, is a collateral attack.

4. Fraudulent Conveyances

Where a judgment lien creditor seeks to have set aside conveyances as fraudulent, the issuance of execution on the judgment is not required, and other lien creditors, if any, though proper parties, are not necessary parties.

5. Equity

In an equity suit a recital by decree to the effect that a general replication was made to the answer is sufficient to dispense with a formal written replication.

Appeal from Circuit Court, Cabell County Suit by Vera R. Crickmer against C. R. Thomas and others to set aside two deeds and an assignment of an interest in an oil and gas well, and to have the land and oil and gas interest sold to satisfy plaintiff's judgment. Decree for plaintiff, and the named defendant appeals.

Affirmed.

Duncan W. Daugherty, for appellant. G. E. Kester son, for appellee.

Riley, Judge:

Vera C. Crickmer, a judgment creditor of the defendant, C. R. Thomas, filed her bill in equity in the Circuit Court of Cabell County against said Thomas, Thomas Pictures, Inc., and Brockway Plumbing and Supply Company (the latter being subsequently dismissed), praying that two deeds embracing certain tracts of land and an assignment of an interest in an oil and gas well be set aside as voluntary and fraudulent, and that the tracts of land and oil and gas interest be sold to satisfy plaintiff's judgment, subject to any prior lien indebtedness thereon. C. R. Thomas appeals from a decree in plaintiff's favor.

The decree upon which this appeal is based provides that a deed of C. R. Thomas to Thomas Pictures, Inc., dated January 10, 1938, and recorded on January 11, 1938, except as to a certain lot, and an assignment of said Thomas to said corporation, dated January 10, 1938, and recorded on January 11, 1938, be set aside as to plaintiff's judgment; that defendant Thomas pay plaintiff the amount of the judgment with interest and costs; and that in default of such payment, the property be sold, subject to all prior existing lien indebtedness or so much thereof as may be necessary to pay off and discharge plaintiff's judgment and costs, and the costs in this suit.

The principal ground of error is based on the theory that the judgment, upon which this suit is predicated, is void, for the reason that plaintiff did not comply with the provisions of Chapter 89, Acts of West Virginia Legislature, Second Extraordinary Session 1933, amending Code 1931, 56-4, in that he did not allege in his pleadings or prove by affidavit or otherwise at any time before entry of said judgment: (1) that the note, upon which the judgment was obtained, has been assessed for taxation for each and every tax year on the first day of which plaintiff was the owner of the same, not exceeding five years prior to that in which the action was instituted and not in any event earlier than the first day of January, 1933; or (2) that said note constituted a part of the capital employed in plaintiff's business and was assessed as such; or (3) that plaintiff has not paid or is unable to pay the taxes and interest and penalties, if any, on said note, but is willing for the same to be paid out of his first recovery thereon; or (4) that said note is not taxable under the law in the hands of the plaintiff, or is otherwise exempt from taxation.

The foregoing position was sought to be raised (1) by a special plea in bar, which the chancellor, after the filing of a general replication thereto, held insufficient, and (2) by the answer.

Failure of the judgment to recite that plaintiff has complied with the conditions of the foregoing statute does not render it void or voidable. Newhart et al. V. Pennybacker, Judge, et al., 120 W. Va. 774, 200 S. E. 350, decided contemporaneously herewith. This judgment was entered by a court of unlimited jurisdiction and the record does not affirmatively disclose lack of jurisdiction of parties and subject matter. It, therefore, is not subject to collateral attack. City of Wheeling V. John F. Casey Co., 89 Fed. (2d) 308, and dictum in City of Wheeling V. John F. Casey Co., 85 Fed. (2d) 922, and other cases cited in Newhart et al. v. Pennybacker, Judge, et al., supra. It has been held that a defense attacking a judgment as fraudulent in a suit brought by a judgment lien creditor for the purpose of enforcing the lien is a collateral attack. Lough v. Taylor, 97 W. Va. 180, 124 S. E. 585. By analogy, it is clear that this principle applies equally to this suit, in which a judgment lien creditor seeks to set aside fraudulent conveyances and enforce his judgment lien against the property embraced therein. It follows, the defense interposed here that the record does not disclose compliance with Chapter 89 of the Acts aforesaid cannot prevail.

In the demurrer to the bill, which demurrer was overruled, as well as in the answer, plaintiff's right of recovery was challenged because neither the bill nor the record disclosed that execution was issued on the judgment and because other lien creditors were not made parties. This theory involves a misconception of the purposes of the bill of complaint. From its allegations and prayer, it is clear that this is not a creditor's suit. It is simply a suit to set...