Hurley v. Bennett
| Decision Date | 20 September 1934 |
| Citation | 176 S.E. 171 |
| Parties | HURLEY et al. v. BENNETT et al. |
| Court | Virginia Supreme Court |
Appeal from Circuit Court, Buchanan County.
Suit by the First National Bank of Iaeger, W. Va., against P. J. Hurley, S. R. Hurley, and others, wherein Jack Bennett, receiver for the First National Bank of Grundy, Va., and another intervened. From a decree, defendants appeal, and interveners cross-appeal and move to dismiss defendants' appeal.
Motion to dismiss overruled, and decree reversed and remanded.
Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, and CHINN, JJ.
S. H. & Geo. C. Sutherland, of Clintwood, for appellants.
H. Claude Pobst, of Grundy, for appellees.
On the threshold of this appeal, we are met with a motion to dismiss, based on two grounds: First, because the appeal bond was not completed within the six months required by statute; second, because the "bond is not in proper form."
The last amendment adopted in 1932 to subsection 8 of section 5 of the Code provides (acts 1932, c. 31), that in computing time the day on which the event or judgment occurred shall be excluded. The final decree, from which this appeal was obtained, was entered on April 24, 1933. Hence the six-month period did not begin to run until April 25, 1933. The petition and record were presented to Chief Justice Campbell, on October 23, 1933, who on November 8, 1933 granted the appeal, and on the same day delivered the petition and record to the clerk. In computation of the six-month period, the time the petition was in the hands of this court, and unacted upon, is excluded. See Code, § 6355. The execution of the appeal bond was completed November 9, 1933; excluding the time from October 23 to November 8, it is apparent that the bond was executed within the time required by statute.
The issues presented in the case were raised in a petition filed by Jack Bennett, receiver, and W. A. Lester, in a cause pending in the circuit court of Buchanan county, under the caption "First National Bank of Iaeger, W. Va., vs. P. J. Hurley et als." The objection to the form is that the bond shows that it was given in a suit "pending in said court in which Jack Bennett, Rec. is the complainant, and P. J. Hurley et als were defendants." When the petition was filed in the original cause, it was remanded to rules and there matured as to P. J. Hurley and all the defendants named therein. There is no doubt that all the obligors intended to execute a supersedeas bond in strict conformity with the statute. The mistake was a mere misprision of the clerk, and constitutes no defense to an action on the bond. Northern Neck Mutual Fire Ass'n v. Turlington, 136 Va. 44, 116 S. E. 363. The motion to dismiss is overruled.
The petition alleged that Jack Bennett, receiver, and W. A. Lester were judgment creditors of S. R. Hurley; that their debts were contracted prior to June 4, 1927; that on that date, S. R. Hurley, without valuable consideration, and for the purpose of hindering, delaying, and defrauding his creditors, conveyed four tracts of land and undivided interest in another tract to his wife, P. J. Hurley. S. R. Hurley, P. J. Hurley, and certain lien creditors of P. J. Hurley, to wit, the City Bank, Green Charles, F. W. Smith, J. W. Shortridge, G. E. Atkins, trustee, the Clint-wood Bank, and Jack Bennett, as receiver, of the First National Bank of Iaeger, W. Va., were made parties defendant to the petition.
S. R. Hurley, P. J. Hurley, and J. W. Shortridge demurred, and filed their answers, in which they deny the material averments of the petition. Each side took and filed depositions in support of their allegations. On the hearing the chancellor rendered a decree, declaring that said deed was voluntary and void, as to existing creditors of S. R. Hurley. From that decree this appeal was allowed.
P. J. Hurley, S. R. Hurley, J. W. Shortridge, City Bank, and Clintwood Bank, Inc., appellants, assigned as error the several defenses raised by the answers. In our view of the case, it is necessary to consider only one question; i. e., whether or not the petitioners, at the time of filling their petition, had waived their right to attack the deed from S. R. Hurley to his wife. Consideration of this question necessitates a review of the history of this litigation.
On April 17, 1928, the First National Bank of Iaeger, W. Va., in the circuit court of Buchanan county, obtained a judgment in the sum of $3,000 against S. R. Hurley, P. J. Hurley, and F. E. Morgan. The bank then instituted this suit, and at first July rules, 1928, filed its bill, for the purpose of subjecting the lands, owned by each of these three judgment debtors, to sale to satisfy the liens thereon. The First National Bank of Grundy, G. W. Mullens, and W. A. Lester as lien creditors were made parties defendant to the suit. The cause was duly referred to A. A. Charles, commissioner, for the purpose of ascertaining what real estate was owned by each judgmentdebtor and to take an account of the liens thereon. The specific inquiries that the commissioner was directed to make were stated thus:
(1) "To report whether there are personal assets in the hands of the defendants, P. J. Hurley, S. R. Hurley and F. E. Morgan, sufficient to pay off and discharge the complainant's judgment."
(2) "To report all the liens and judgments against the said P. J. Hurley, S. R. Hurley, and F. E. Morgan and their respective priorities."
(3) "To report the real estate owned by the said P. J. Hurley, S. R. Hurley and F. E. Morgan, and whether it will in five years, rent for enough to pay off and discharge the liens and judgments against same, as well as the cost of this suit."
(4) "To report any other matters deemed necessary by the said Commissioner."
On November 10, 1928, Commissioner Charles filed his report, in which, among other things, it is stated that P. J. Hurley owned in fee four small tracts of land, and an undivided interest in another tract, all conveyed to her by deed dated June 4, 1927, from her husband, S. R. Hurley. Among the three liens reported as binding upon the lands of P. J. Hurley was a deed of trust bearing date November 26, 1927, in which she and her husband had conveyed a part of the same land to Jennings L. Looney, trustee, to secure the payment of a debt for $1,700, then held by the First National Bank of Grundy.
No exceptions were taken to this report, and it was confirmed in all particulars by a decree entered November 26, 1928. By this same order, the real estate of each of the judgment debtors, or so much thereof as might be necessary to satisfy the liens thereon, was directed to be sold, at auction. For this purpose F. M. Clevinger was appointed special commissioner.
Pursuant to this and other decrees subsequently entered, a large part of the real estate of each of the judgment debtors was sold. All of these sales were reported to the court and were confirmed by proper decrees.
Upon suggestion that, since November 10, 1928, other parties had obtained liens against the lands of the three judgment debtors, the cause was again referred to Commissioner Charles, to ascertain and report thereon. Tins he did, and among other matters his second report showed what lands of P. J. Hurley had been sold, and what remained unsold, together with the liens and the order in which they should be paid. To this report Jack Bennett, receiver, made the following exceptions:
(1) "Because exceptor was given no notice of this accounting and report."
(2) "Because exceptor's judgment should have been reported as being prior to the judgment of City Bank, Inc. vs. S. R. Hurley, and P. J. Hurley, but is reported as being subsequent thereto."
(3) "Because the report is incomplete, inaccurate and decree cannot be based thereon."
Subsequently these exceptions were sustained, and the cause was referred to E. J. Sutherland, special commissioner, among other directions, to ascertain the land of P. J. Hurley which had been sold, that remaining unsold, and the liens binding thereon. This commissioner, on January 2, 1931, filed a detailed report from which it appears that there were eleven liens on the land of P. J. Hurley totaling $14,912.14. To this sum should be added $3,690.77, the amount of the judgment in favor of the First National Bank of Iaeger, which without a decree for distribution seems to have been paid out of the proceeds of sale of the P. J. Hurley land. Hence the total liens against this land appear to have been $18,602.91. Included in this total, and reported as a third lien on certain parts of the lands owned by P. J. Hurley, was the deed of trust securing to the First National Bank of Grundy the principal sum of $1,700, which with interest calculated by the commissioner, as of the date of the report, totaled $2,004.30. Certain exceptions were taken to this report which were not made a part of the record in this court. In passing upon these exceptions, the court by decree dated September 23, 1931, made the following corrections:
The debt reported by E. J. Sutherland, commissioner, as the tenth...
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