Crickmer v. Thomas, No. 8824.

• Court: Supreme Court of West Virginia
• Writing for the Court: RILEY
• Citation: 200 S.E. 353
• Parties: CRICKMER. v. THOMAS et al.
• Docket Number: No. 8824.
• Decision Date: 06 December 1938

200 S.E. 353

CRICKMER.
v.
THOMAS et al.

No. 8824.

Supreme Court of Appeals of West Virginia.

Dec. 6, 1938.

Syllabus by the Court.

1. "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., W.Va., 200 S.E. 350, decided contemporaneously with this case.

2. "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." Newhart et al. v. Pennybacker, Judge, et al., W.Va., 200 S.E. 350, decided contemporaneously with this case.

3. 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 its face compliance with Chapter 89, Acts West Virginia Legislature, Second Extra. Session, 1933, amending Code 1931, 56-4, is a collateral attack.

4. 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. 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.

[200 S.E. 354]

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.

Decree affirmed.

G. E. Kesterson, of Huntington, for appellant.

Duncan W. Daugherty, of Huntington, 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 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...