First Nat. Bank Of Cumberland. v. Petitioner

• Decision Date: 17 December 1898
• Citation: 45 W.Va. 688
• Court: West Virginia Supreme Court
• Parties: First Nat. Bank of Cumberland et al. v. Parsons et al.

45 W.Va. 688

First Nat. Bank of Cumberland et al.

v.Parsons et al.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 15, 1898

Decided Dec. 17, 1898.

1. Circuit Courts Duration of Term.

A term of a circuit court of one county can, if necessary, prolong its session beyond 4 o'clock p. m. of the third day of the time fixed for a term in another county. (pp. 690-93).

2. Circuit Courts.

Circuit courts of different counties in the same circuit may sit at the same time. (p. 693).

3. Suretyship Release of Surety Equity Surrender of Property.

If a creditor surrender a lien or hold upon property of a principal debtor, which constitutes a substantial security for the debt, in part or whole, without consent of a surety, the surety is, in equity, discharged from the debt, in part or whole, according to the value of the property; but if the principal had really no title to the property, and it cannot be said to have a real value applicable to the debt, and the surety is not injured by the surrender, the surety is not discharged. (p. 695).

4. Suretyship Release of Surety Debtor and Creditor Contracts.

Mere indulgence of a principal debtor by a creditor, without a binding contract for such indulgence, based on valuable consideration, will not discharge a surety. (p. 698).

5. Suretyship Continuance Release of Surety Contract.

Mere continuance at a term of court of a suit against a principal debtor by consent of the creditor, not under any valid contract to continue, will not discharge a surety. (p. 698).

6. Suretyship Release of Surety Bill Quia Timet Contracts.

The principle on which an agreement for an extension of time discharges a surety is that the creditor thus deprives the surety of means of relieving himself by paying the debt and proceeding immediately against the principal, or, without paying, by filing his bill quia timet tomake the surety pay, or by notice to the creditor under the statute. The surety is not discharged by an act which in no manner affected his right or impaired the remedies of the creditor. Adams v. Logan, 27 Grat. 201. (p. 698).

7. Injunction Bond Preferred Creditors Judgment Fraudulent Conveyance.

An injunction bond payable upon the contingency specified in its condition, given before a deed of land which is a preferenee of one creditor over others, and which stands for the benefit of all creditors, on which bond judgment is recovered after the date of such deed, is entitled, under s, 2, c. 74, Code 1891, to share in said land, the owner of such judgment being a creditor. The contingent character of the bond makes no difference. (p. 700).

Appeals from Circuit Court, Tucker County.

Suits by the First National Bank of Cumberland and others against Ward Parsons and others. From a judgment dismissing the bills, plaintiffs appeal.

Reversed.

W. B. Maxwell, and A. Jay Valentine, for appellants. J. P. Scott, A. B. Parsons, Fred. O'Blue, and Dayton & Dayton, for appellees.

Brannon, President:

The First National Bank of Cumberland and other creditors of Ward Parsons brought four separate equity suits against him and others, to set aside a conveyance of all real estate to his son Lemuel W.Parsons, as fraudulent;-and, upon a joint hearing of the causes, a decree was entered December 14, 1897, di smissing the bills of these creditors, selling the land for other creditors, but ignoring and disallowing the debts of those creditors, and they appeal.

One error assigned against the decree is that the circuit court of Tucker County was not lawfully sitting on the date of this decree, its term having expired, for the reason that the term of the circuit court of Preston County was fixed by law to begin December 11th, and the Tucker County court could not go on till December 14th. This presents a much-mooted and interesting and very important question, which ought to be definitely decided. It has been the understanding of the legal profession, so far as I am able to say, for many years, that a circuit court term legally ends at a point of time from which there only remains time enough, by the usual course of travel, to enable the judge to reach the next court in the circuit, and open it not later than four o'clock of the afternoon of the third day. This is an impression founded on Mendum's Case, 6 Rand. (Va.) 704; HHPs Case, 2 Grat. 595, and Boices Case, 1 W. Va. 329. But in all of these cases the sentences alleged to be void because of the alleged expiration of the terms when they were rendered were sustained, because it appeared that a sufficient time remained after sentence for the judge to reach his next court by four o'clock after noon of its third day. In no one of them was the question decided. Is a judgment of a circuit court continuing to sit after it is too late for the judge to so reach and open his next court by four o'clock p. m. of its third day, rendered after that point of time, void, as being coram non judice, or voidable for that reason? In Mendum's Case the question is mooted, but not decided, but passed by because that sentence was in time for the judge to reach his next term. HHPs Case is the nearest approach to the decision of this question. The syllabus of the decision is that "the law has affixed no limit to the terms of the circuit superior courts except that the judge holding the court shall adjourn in time to hold the next court in his circuit at the time appointed by law; and the judge may continue the session of his court until the latest period which will allow him time to get to the next court by four o'clock p. m. of the third day of the term." Judge Duncan does not in his opinion, say just this, but per- haps it is a fair construction of what he does say. Judge Baker said nothing of that kind. He only said it was the duty of the judge to go on with the prisoner's case after the expiration of his term as he did. But, at any rate, it is not the point of decision, legally speaking, but obiter dictum; for Hunter Hill was sentenced at nine o'clock a. m., in Nansemond County, and the court found, as it was certified, that the judge could travel the seventeen miles to the Isle of Wight Court in three hours, thus having four hours to spare. The same may be said of Boice's Case; the exact point now up was not decided, the judgment being held to be in time. This understanding has sprung from the generality of Judge Duncan's language in HHPs Case, whereas, it is not certain that he or the court intended to decide that a judgment rendered after the third day of the next term was void.

But assume that Mendum's and Hill's Cases decide that a term can last no longer than a point of time from which the judge can reach his next court by four o'clock p. m. of its third day, and that a judgment rendered later than that point would be void; I would then hold that these cases do not govern, because the statute existing then is different from that now in force. The statute governing those cases reads: "Each of the aforesaid courts shall sit until the business thereof shall be dispatched, unless the judge holding the same be compelled to leave the court, in order to arrive in time at the next succeeding court of his circuit, or at the general court." I Rev. Code, p. 229. Here, it might be said, was a limitation to the term by the letter of the statute. In Mendum's Case, Judge Bouldin states that two of the judges Brockenbrough and Summers were "strongly inclined to think that the qualifying words unless the judge be compelled to leave in order to arrive, 'etc., are to be considered as directory or permissive only, and that of the necessity to go to the next court, or to finish what is before him, and what has already been begun, he is to judge, and, on his own responsibility, decide whether a compliance with the express orders of the legislature to dispatch the business before him, or go to the next court, as the law permits, will best subserve the public interest. They argue that it is right it should be so, else there would often be a failure of justice. In some of our courts it sometimes happens that cases of the most important character could not be finished, and consequently would never be tried, unless the judge has power to run into the term of the next court to which his duty calls him; and, as the legislature has fixed no precise limit, the construction which best fulfils their general purposeis the right one." But thispoint was waived, not decided.

Our present statute (section 2, chapter 114, of the Code) reads: "The supreme court of appeals and circuit court may at any time adjourn from day to day until the business is dispatched, or until the end of its term," meaning to authorize adjournment from day to day, and to continue these adjournents until the business is done, or until it actually adjourns; the end of the term here meant being not that which happens from the coming on of the time fixed for another cnurt, but the actual end of the term by actual adjournment. This section leaves out that language in it when HHPs Case was decided, "unless the judge holding the same shall be compelled to leave the court in order to arrive in time at the next succeeding court of his circuit." The statute having changed, Hill's Case, if it decided the point, cannot apply. We must construe and apply our present act. Our statute law fixes dates for the commencement of terms, but fixes no express length of those terms. The only limitation is one to be implied, it may be said, by the coming of the time fixed for another court; and, as each county has its time, the law intends to close one court when another begins. But it is only an implied termination. The judge is directed, it is true, to hold a court in the other county; but, if he continues in one county, the court of the other county is simply without a term, the term is simply lost in the second county. The Preston term is simply lost or lapsed; but the Tucker term, already in session, if actually continuing, is still the circuit court of...