Findley v. Durbin
| Decision Date | 18 November 1896 |
| Citation | 42 W.Va. 299 |
| Parties | Findley v. Smith et al.Durbin v. Same. |
| Court | West Virginia Supreme Court |
It is a fundamental rule in the administration of justice that a person can not be a judge in a cause wherein he is interested, whether he be a party to the suit or not.
By an assignment of a judgment, although without recourse, the assignor warrants that the judgment is what it purports to be, that he has done nothing to prevent the assignee from collecting it, and that it has not been paid; but, being without recourse, he is not answerable for the insolvency of the judgment debtor.
In this state there is no statute bearing directly on the point, and a decree pronounced by a person thus interested in the cause is not void, but only voidable, as being a decree not according to law, and to be set aside only when brought under review, and upon objection taken.
Mere formal orders, such as are necessary to bring the cause before the proper tribunal, and where nothing is decided mere orders entered to advance the cause towards a final hearing may be entered by an interested judge, but that is the extent of his power.
Under chapter 129 of the Code, chapter 8 of the Acts of 1895, any party may except to a commissioner's report at the first term of the court next after the term at which the same is filed; but, subject to such right to except, the cause may be heard upon such commissioner's report at any time after it is returned; and various interlocutory orders, such as an order of recommittal, may be entered at such hearing, but not a final decree confirming such report, except at the risk of the exercise of such right of exception within the time given by the statute.
Where there is a judgment at law against a principal debtor and his two sureties, and a bill is filed in equity for the purpose, inter alia, of enforcing the lien of the judgment against the real estate of the principal and the real estate of one of the sureties, his co-surety is a proper party, and, being made a party, is not in any way served with process, and does not appear, and a joint personal decree is pronounced against them, held, the co-surety decreed against, who was before the court, has right of complaint that the court entered a void decree against his co-surety.
According to the statute and practice in this state, a writ of ji. fa. goes into the officer's hands, to be executed and returned in good faith according to the exigency of the writ, without avoidable delay; and the officer is not required by the statute to hold it throughout the time the writ has to run, but may properly return it before the return day.
Samuel V. Woods for appellants, cited Acts 1895, chapter 8, section 7; 21 W. Va. 689; Cooly's Const. Lim. 411; Hopk. Ch. 2; 21 Pick. 191; 11 Mich. 139; Code, c. 112, s. 11; Code, c. 129, s. 3; 86 Va. 410; Devlin, Deeds, ss. 476-7; 29 Gratt. 679; Freeman on Judg. §§ 136, 144; 23 Am. Kep. 769; 39 W. Va. 579; Code, c. 125, s. 35; 1 Bart. Ch. Prac. 417; Story, Eq. PI. 688. U. G. Young for appellees, cited 18 W. Ya. 185; 20 W. Ya. 536; 29 W. Va. 471; 35 W. Ya. 536; Works "Courts and their Jurisdiction," eh. 2, § 62; Am. & Eng. Enc. Law, Yol. 12, pp. 47 & 48; 11 W. Ya. 342; 18 Gratt. 83; 15 W. Ya. 805; 26 W. Ya. 710, 754; 27 W. Ya. 229, 639; Code, c. 125, s. 52, 53; 10 W. Ya. 645; 32 W. Ya. 45; 37 W. Ya. 201; 6 W. Ya. 417; 14 W. Ya. 1, 254; 21 VV. Ya. 262, 698; 24 W. Ya. 525; 25 W. Ya. 416; 33 W. Ya. 159, 197; 36 W. Ya. 454; 38 W. Ya. 669; 30 W. Ya. 103; 32 W. Ya. 447; Code, c. 134, s. 3; 11 W. Ya. 277; 7 W. Ya. 380.
C. C. IIigginbotham and W. H. Fisher for appellees:
I. W. G. Bennett assignor not interested. 11 W. Va. 342;
II. W. G. Bennett not a party. 18 W. Ya. 185; 20 W. Va.
520; 35 W. Ya. 520.
III. No continuance. Code, p. 809, s. 52; 19 W. Va. 187; 10 W. Va. 187; 14 W. Ya. 254; 32 W. Va. 148; 32 W. Ya. 45; 37 W. Va. 201.
IV. Jane Smith should have excepted to the report. 14 W. Ya. 521; 22 W. Va. 159.
V. Jane Smith's answer and replication. 19 W. Va. 176; 38
VI. Jane Smith and Joseph G. Smith not prejudiced. 15 W. Ya. 801; 26 W. Va. 745; 27 W. Va. 229; 26 W. Ya. 710; 36 W. Ya. 681; Code, p. 809, s. 57.
VII. Equity has jurisdiction. 3 Pomeroy Eq. Jur. § 1415; 1 rTelise, 330; 5 Duer, 681; 1 E. D. Leath, 414; 35 N. Y. 99; 6 J. J. March, 219; 11 Geo. 524; 5 Blackf. 561; 24 Ind. 257; 8 Patch. 469; 9 Pai. 386; 3 Pai. 311; 5 How. 396; 25 K Y. 430.
VIII. Joseph G. Smith did not demur to the bill nor did Jane Smith. Section 3, chapter 134, Code.
IX. No vendor's lien retained by Jane Smith. Code, c. 75, s. 1; 39 W. Va. 570.
Holt, President:
On appeal by Joseph P. Smith and Jane Smith, defendants, from decrees rendered in the above two causes heard together by the Circuit Court of Upshur county, on the 19th day of August, 1895, and on the 14th day of June, 1895.
On the 6th day of January, 1894, William Loudin, a justice of Upshur county, rendered in favor of W. G. Bennett, against defendant J. 0. Smith, a judgment for thirty one dollars and seventy three cents, and four dollars and twenty five cents costs, which was entered on the judgment lien docket on the 29th day of January, 1894. On the subject of "Identity," see 16 Am. & Eng. Enc. Law, 119, note 6. On the 14th day of February, 1894, W. G. Bennett, for value received, and without recourse on him, assigned and transferred this judgment, by written assignment to plaintiff William K. Findley. W. G. Bennett was and is the judge of the circuit court of Upshur county. On the 11th day of March, 1894, plaintiff William K. Findley brought his suit in equity, in the circuit court of Upshur county, against defendant Joseph C. Smith and others, to enforce the lien of this judgment against the real estate of defendant Joseph C. Smith, in pursuance of chapter 139 of the Code. He made other lienholders parties, naming W. G. Bennett a party in the writ, but did not make him a party in the bill. The bill was filed, setting forth plaintiff Findley's judgment and the various lienholders made defendants in the bill. On the 6th day of June, 1894, the usual order of reference was entered in the cause, directing the commissioner in chancery, to whom the cause was referred, to ascertain and report the real estate owmed by defendant Joseph C. Smith, the liens thereon, the dates, priorities, and amount of each, to whom due, etc., to convene the lienors by notice, as required by the statute. On the 6th day of June, 1895, defendant Jane Smith filed her answer, which was also made, in effect, a cross bill. The commissioner's report was completed and filed in the clerk's office on the 24th day of May, 1895, and plaintiff filed three exceptions thereto on the 3d day of June, 1895, and plaintiff Charles Durbin, executor, one exception. The commissioner reported 32 liens, and, among them, No. 4 in order of the priority, as to the tract of land mentioned, and No. 2, as to a certain lot, this judgment of W. G. Bennett against Joseph C. Smith, and plaintiff W. K. Findley was the holder thereof by assignment. Defendants Porter, Maxwell and William Post answered Jane Smith's answer and cross bill. The process was not served on defendants Ira Ward and Abram Talbott. On the other defendants not answering, and among them defendant Joseph C. Smith, the bill was taken for confessed, and the cause was set for hearing. On the 14th day of June, 1895, these causes were heard together, before the said W. G. Bennett, Judge of the circuit court of Upshur county, who on that day pronounced one of the decrees here complained of, in which, among other things, it was decreed that Joseph C. Smith do pay plaintiff Findley the sum of thirty seven dollars and eight cents, the amount of principal and interest to that date of the W. G. Bennett judgment, fixing its order of priority as No. 4, against certain tracts of land named, and also giving a decree against Joseph C. Smith, Jane Smith, and Ira Ward in favor of Traders' National Bank, for the sum of one thousand and fifty five dollars and ninety eight cents and interest, and, on nonpayment against a day fixed, directing a commisioner appointed for the purpose to sell the real estate on the usual credit. Section 5 of chapter 134 of the Code provides that, where a decree is entered against a defendant on a bill taken for confessed, the judge in vacation may, on motion, reverse it for any error for which an appellate court might reverse it. Such motion required reasonable notice, and forbade an appeal until such motion was made and overruled in whole or in part. On the 14th day of August, 1895, after due notice accepted, Joseph C. Smith and Jane Smith filed before Judge W. G. Bennett, in vacation, their petition and exhibits, setting forth the grounds of error in the decree, and moving the court to set the same aside. Upon argument of counsel, the judge overruled the motion, and defendants Joseph C. Smith and Jane Smith obtained this appeal.
Six grounds of error were assigned in the petition presented to the judge in vacation, and seven in the petition to this Court. Errors assigned are as follows: First. It was error for Judge G. W. Bennett to make any decrees in these causes, becauses he was a party to the record. Second. It was error for the circuit court to make a final decree upon the commissioner's report at the first term after the report was filed, because it is in violation of appellants' right to except thereto, under section 7 of chapter 8 of the Acts of 1895. Third, It was error for the circuit court to render a decree against petitioners and Ira Ward for one thousand and fifty five dollars and ninety eight cents, without...
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