Haymond v. Camden

Decision Date29 September 1883
Citation22 W.Va. 180
PartiesHaymond, Trustee, v. Camden et al
CourtWest Virginia Supreme Court

1. A non-resident party, against whom a decree has been rendered upon order of publication, having appeared and filed his answer in the circuit court, stating therein grounds of error, and praying the court to set aside the proceedings had against him on account of said error, which the court upon the hearing of the cause refused to do, may appeal to this Court from the decree so refusing to correct such error, without having first filed a formal petition for a rehearing of the cause, and giving bond for the costs as required by the statute; there having been no objection made in the circuit court to his filing his answer, or the want of such formal petition and security for costs, it is too late to object for the want of such petition and security for costs for the first time in the Appellate Court, (p. 187.)

2. The late civil war between the United States and the Confederate States was accompanied by the general Incidents of a war between independent nations, and the inhabitants of the United States on the one hand, and of the Confederate States on the other, became thereby reciprocally enemies of each other, liable to be so treated without reference to their individual dispositions or opinions, and during its continuance all commercial intercourse and correspondence between them were interdicted by principles of public law as well as by express enactments of Congress, and all contracts previously made between them were suspended, and the courts of each belligerent were closed to the citizens of the other. (p. 189.)

3. The right of the creditor to sue and collect his debt cannot exist unless at the same time a corresponding duty exists on the part of the debtor to pay the right of the one and the duty of the other are correlative consequently, where the duty of the debtor to pay is suspended by war, the corresponding right of the creditor to sue and enforce the collection of his debt cannot exist, (p. 190.)

4. Where during the late war a debtor resided within the Confederate and his creditor within the loyal States, the right of the creditor to sue being suspended, he could not lawfully sue his debtor during the pendency of the war. A suit instituted by such creditor, during said war, to enforce the payment of his debt by attachment against such debtor's property, or to enforce a vendor's lien, is without legal sanction or authority and all proceedings had therein are void. (p. 190.)

5. Jurisdiction is indispensable to the validity of all judicial proceedings. Jurisdiction of the person as well as of the subject-matter are pre-requisites and must exist before a court can render a valid judgment or decree, and if either of these is wanting all the proceedings are void. (p. 191.)

6. The notice by publication against a non-resident defendant, prescribed by the statute, is in the nature of a substituted service of process and must be duly published before the court can acquire fall jurisdiction to make any order or decree affecting the defendant or disposing of the attached property. As to persons who can not legally see or obey it, such publication is without any effect or validity whatever, (p. 193.)

7. Judicial proceedings, during the late war, taken within the Union lines against defendants, wrho were absent in the Confederate lines, and who did not appear or have any notice thereof, except the publication of a notice to them in a newspaper which they could not lawfully see, are absolutely void. And it is immaterial in such case whether such defendants wrere permanent residents of the disloyal States or left their homes in the loyal States and went and voluntarily remained there during the war. (p. 193.)

8. In a civil war all the people on either side are at the commencement of hostilities citizens of the same common nation or country, and their subsequent status as enemies of each other is determined entirely by their residence in the territory of the one or the other belligerent. In which ever section such citizen elects to reside, he remains a citizen of that section and by public law he thereby becomes an enemy of the residents of the other section, and in neither section can he become by residence, individual opinions or sympathies an alien enemy of the section in which he resides. Therefore, while in a war between independent nations an alien enemy, resident in the country may sue and be sued as in time of peace, such can not be the case in a civil war, because in such war former citizens of the one section by becoming residents of the other do not thereby become alien enemies, (p. 202.)

9. A sentence of a court, pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal. (p. 198.)

10. The act passed February 10, 1862, by the General Assembly of thre-organized government of Virginia at Wheeling, so far as it attempts to confer jurisdiction upon courts in the loyal counties of the State, by order of publication against persons who left such loyal counties and went into the Confederate lines during the war, is invalid. (p. 203.)

11. In an attachment proceeding the jurisdiction acquired by the seizure of the property attached, is not to pass absolutely upon the rights of the parties, but to pass upon those rights after opportunity has been afforded its owner to appear and be heard. To this end the notice by publication prescribed by the statute is indispensable. Any decree, pronounced in such case without such publication and opportunity to the defendant to appear and make defence, is not a judicial sentence, and will be deemed ex directo in rem., and collaterally void. (p. 204.)

12. Where a decree and sale thereunder are declared void for the want of jurisdiction in the court, the owner of the land so sold, by appearing in the cause and filing his answer, asserting the invalidity of said sale, but praying that the court may ascertain the balance of.the debt due from him to the plaintiff, thereby becomes a party to the suit and waives the want of jurisdiction as to all the proceedings had in the cause not objected to and asked to be set aside in his answer, (p. 206.,

13. A purchaser of land, sold under a decree of court, becomes a party to the suit from the time of his purchase, and subjects himself to the orders of the court in all subsequent proceedings, (p. 207.)

14. A purchaser having purchased land under a void decree, is entitled upon the disaffirmance of the sale to be substituted to the rights of the creditor, and charge the land with the amount of the debt paid by him. (p. 207.)

15. The rents and profits, less the taxes, received by the purchaser whilst in possession of the land, should be deducted from the amount for which he is entitled to charge it, and he should have a decree charging the land for the balance. (p. 207.)

Snyder, Judge, furnishes the following statement of the ease:

In 1859, Luther Haymond, trustee, sold to E. Snowden Andrews eight hundred and nineteen acres of land located in Harrison county, at the price of fifteen thousand one hundred and fifty-one dollars and fifty cents, a part of which Andrews paid in cash and tor the residue gave his bonds with G. D. Camden as surety; and thereupon Haymond conveyed said land to Andrews by deed retaining a lien therein for the payment of said bonds. A large part of said bonds remaining unpaid, but only a small part being then due, Hayniond, in February, 1863, exhibited his bill in the circuit court of Harrison county against said Andrews, Camden and others for the purpose of enforcing the payment of said purchase bonds. On affidavit of the plaintiff, stating that by the laws of this State both Andrews and Camden were non-residents, an attachment was sued out and levied on the said land and other real and personal estate of the defendants Andrews and Camden. Neither of said defendants appearing a personal decree was, on December 12, 1863, entered against them and a sale of said eight hundred and nineteen acres of land directed, reserving the right to proceed against the property of Camden if said sale should not satisfy the plaintiffs debt and costs. The sale having been made, on March 12, 1864, to one James Lynch, the same was reported and confirmed by a decree of the court entered March 26, 1864, and the proceeds thereof ordered to be collected and paid to the plaintiff. The said sale failed to produce a sum sufficient to pay the plaintiff's debt, but left a considerable balance still due on the bonds of Andrews and Camden.

In June, 1870, Camden appeared and filed his answer in which he states that from April, 1861, to the close of the war between the United States and the Confederate States, he was a resident of that portion of the State of Virginia which by the proclamation of the President of the United States of July 13, 1861, was declared to be in insurrection against the government of the United States, and that he was in fact within the military lines of the Confederate States during the whole of said war and he believes his co-defendant, Andrews, was also an inhabitant, during the said war, of said insurrectionary portion of Virginia; that upon these facts he insists the court could acquire no jurisdiction over him by order of publication, and that said decree of December 12, 1863, and March 26, 1864, should be set aside. On January 24, 1874, Camden tendered a formal petition for a re-hearing of said decrees for the same reasons set out in his answer, which petition the court rejected and it also refused to set aside said decrees. The court then, by its decree of that date, having ascertained that, after applying the proceeds of the sale of said eight hundred and nineteen acres of land, there was still due to the plaintiff two thousand eight hundred and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT