Dillard v. Krise
| Decision Date | 05 December 1889 |
| Citation | 86 Va. 410,10 S.E. 430 |
| Court | Virginia Supreme Court |
| Parties | DiLLARD v. KRISE. |
Notice—Computation of Time—Priority of Liens —Commissioner's Report.
1. Code Va. 1887, § 5, declares that, where a statute requires a notice to be given a certain time before any proceeding, there must be that time exclusive of the day set for such proceeding; and if publication is had under section 3321, which provides for four weeks' publication of the time and place of the taking of an account by a commissioner, there must be 28 days from the first insertion to the day fixed for taking the account.
2. In an action against principal and surety, the report of a commissioner, to whom the cause has been referred to take an account of the liens, etc., should be recommitted if it fails to show the priority of their debts, or if it shows the debt to be a lien on the land of the surety, without showing the liabilities and assets of the principal.
3. Where a general creditors' bill alleges that the rents and profits of defendant's lands will not pay the liens within five years, and the answer denies the allegation, the value of the lands is made an issue, and it is the duty of the court to ascertain their value with reasonable certainty before decreeing their sale.
4. A commissioner is incompetent to take and report an account in a general creditors' suit in which he is a creditor and a party.
J. L. S. Kirby, for appellant. A. H. Burroughs, for appellee.
This is an appeal from a decree of the circuit court of Nelson county, rendered on the 8th day of October, 1888, in a suit in which P. A. Krise is the complainant, and Stephen T. Dillard and
L. A. Larkin are defendants. In the month of February, 1887, a bill was filed in the circuit court of Nelson county by P. A. Krise, in behalf of himself and all other lien creditors of Stephen T. Dillard, against the said Stephen T. Dillard and L. A. Larkin, the object of which was to convene the creditors of the said Stephen T. Dillard and the creditors of the said L. A. Larkin before the said court, to take an account of their debts according to their legal priorities, and to subject the realty belonging to the said defendants to the satisfaction thereof. Several decrees were entered in the progress of the cause, which are not brought in question by this appeal, when, on the —— day of April, 1888, the court entered a decree recommitting the report of the commissioner, theretofore taken, with instructions to make report of the accounts directed to be taken by decree entered at the March term, 1887, governing himself in all respects by the terms of the said decree; by which it was provided that, before an account of liens should be taken by the commissioner, he should publish In the Nelson Examiner, once a week, for four consecutive weeks, a notice of the time and place of taking of the same, warning all persons claiming to be lien creditors of the defendants to appear at the time and place indicated, with proof of their claims, under the penalty, if they should fail, of being debarred from all participation in these proceedings. The master commissioner returned his report, which purports to have been made in accordance with the provisions of the said decree. When the cause came on to be heard the appellant filed sundry exceptions to the said report, all of which the court overruled, and then confirmed the report, and decreed the lands of the appellant to be sold. From this decree this appeal is taken.
The first error assigned is the overruling of the exception of the appellant to the report of the commissioner, on the ground that there was no legal notice by the commissioner, making said report by publication, of the time and place of stating the accounts directed. The statute (Code 1887, § 3321) says: And the decree directing the account provided: "The com-missioner who takes the same is...
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Teter v. Moore
...of the commissioner to the creditors of the estate represented by the plaintiff, without objection, constitutes a waiver. Dillard v. Krise, 86 Va. 410, 10 S. E. 430; Etter v. Scott, 90 Va. 762, 19 S. E. 776; Fox v. Hazel ton, 10 Pick. (Mass.) 275; Duckworth v. Diggles, 139 Mass. 51, 29 N. E......
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Evans v. Evans
..., 221 Va. 1098, 1105, 277 S.E.2d 483 (1981) ; see also Robertson v. Stone , 199 Va. 41, 43, 97 S.E.2d 739 (1957) ; Dillard v. Krise , 86 Va. 410, 412, 10 S.E. 430 (1889). As an "inferior method" of providing notice, service by order of publication may not be employed without a convincing sh......
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Russell v. Croy
...3 Abbott (N. S.) 396; Richardson v. Bates, 23 How. Pr. 516; Hill v. Faison, 27 Tex. 428; Early v. Doe, 16 How. (U.S.) 610; Dillard v. Krise, 10 S.E. 430; Martin v. Barbour, 34 F. 701; Pennell Monroe, 30 Ark. 661; Parsons v. Lanning, 27 N.J.Eq. 70; Francis v. Norris, 2 Miles (Pa.) 150; In re......
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Peatross v. Gray
...as well as the statute authorizing it, must be strictly construed. Steinman v. Jessee, 108 Va. 567, 572, 62 S.E. 275; Dillard v. Krise, 86 Va. 410, 412, 10 S.E. 430. Here the order of publication merely states: "The object of this suit is to subject the estate of John W. Breedlove to the pa......