Hurley v. Bennett

• Decision Date: 20 September 1934
• Citation: 163 Va. 241
• Court: Virginia Supreme Court
• Parties: S. R. HURLEY, ET ALS. v. JACK BENNETT, RECEIVER FOR FIRST NATIONAL BANK OF GRUNDY, VIRGINIA, ET AL.

Page 241

163 Va. 241

S. R. HURLEY, ET ALS. v. JACK BENNETT, RECEIVER FOR FIRST NATIONAL BANK OF GRUNDY, VIRGINIA, ET AL.

Supreme Court of Virginia, Staunton.

September 20, 1934.

Present, Campbell, C.J., and Holt, Epes, Hudgins and Chinn, JJ.

1. APPEAL AND ERROR — Computing Time in Which Petition for Appeal or Writ of Error Should Be Made — Day on Which the Event or Judgment Occurred Should be Excluded — Subsection 8 of Section 5 of the Code of 1930. — The last amendment adopted in 1932 to subsection 8 of section 5 of the Code of 1930 provides, that in computing time the day on which the event or judgment occurred shall be excluded.

2. APPEAL AND ERROR — Computing Time in Which Petition for Appeal or Writ of Error Should Be Made — Day on Which the Event or Judgment Occurred Should be Excluded — Subsection 8 of Section 5 of the Code of 1930 — Case at Bar. — In the instant case 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 the Supreme Court of Appeals, and unacted upon, is excluded. See Code of 1930, section 6355. The execution of the appeal bond was completed November 9, 1933; excluding the time from October 23rd to November 8th, it is apparent that the bond was executed within the time required by statute.

3. APPEAL AND ERROR — Misprision of Clerk — Case at Bar. — In the instant case the issues presented 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., P. J. Hurley et als." It was objected to the form that the bond showed that it was given in a suit "pending in said court in which Jack Bennett, receiver, 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 was 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.

4. JUDGMENTS AND DECREES — Amendment or Modification of Judgment or Decree — Bill of Review or Petition to Rehear. — The usual method of amending or modifying decrees is either by filing a bill of review after rendition of a final decree or by filing a petition to rehear after rendition of an interlocutory decree. In the instant case the only new matter alleged was that the deed of June 4th, from S. R. Hurley to his wife, P. J. Hurley, was a deed of gift. But there is no allegation when petitioners ascertained the knowledge of this alleged fact. Strictly construing the pleading, it is neither a bill of review nor a petition to rehear; but, inasmuch as both sides, without so naming it, in effect, have treated it as a petition to rehear, the Supreme Court of Appeals should so regard it.

5. JUDGMENTS AND DECREES — Power of Court to Change or Modify Interlocutory Decree — Reopening Not a Legal Right — Rehearing or Bill of Review. — The court undoubtedly has power to change, modify, or set aside an interlocutory decree both before and after the adjournment of the term in which it is entered. However, the reopening of such a decree is not a matter of right, but rests in the sound discretion of the chancellor. It is settled that, where consideration of justice requires a rehearing, the courts are not as reluctant to grant relief upon a petition to rehear as upon a bill to review.

6. FRAUDULENT AND VOLUNTARY CONVEYANCES — Attack by Judgment Creditor Upon a Deed to Judgment Debtor as a Fraudulent Conveyance — Failure to Present Petition to Commissioner — Case at Bar. — In the instant case petitioners for a rehearing did not point out any error on the face of the record, and they failed to allege or even suggest any excuse for their failure to attack the deed of the judgment debtor as having been executed in fraud of the creditor, or to present these matters to the commissioner, or to the court on exceptions to the commissioner's report.

7. FRAUDULENT AND VOLUNTARY CONVEYANCES — Attack upon Deed to Judgment Debtor as Fraudulent — Judgment Creditor's Recognition of Deed as Valid — Case at Bar. — In the instant case a judgment creditor attacked a deed to the judgment debtor as a fraudulent or voluntary conveyance. The judgment creditor accepted as security for the payment of a debt a deed of trust by which a part of the land included in the deed alleged to be fraudulent was conveyed to a trustee for its benefit. In numerous reports that the commissioners made in the cause it was stated that this deed was a lien on the land therein described, and that the lien was owned by the judgment creditor. It is presumed that the amount of the debt was proven before the commissioners by the owner of the lien. There was no offer to surrender this lien. The judgment creditor or its receiver had consistently, and insistently, maintained that it was the owner of this debt. Thus, before the institution of this suit, and for more than three years thereafter, the judgment creditor, or its receiver, has recognized the validity of the deed in controversy.

Held: That it was too late now for the judgment creditor to attack the deed in controversy.

8. ELECTION OF REMEDIES — Litigant Not Allowed to "Approbate" and "Reprobate" — Litigant Confined to His Election between Inconsistent Courses of Action. — A party cannot in the course of the same litigation occupy inconsistent positions. Upon that rule election is founded; a litigant will not be allowed in the language of the Scotch law to "approbate" and "reprobate." Where he has an election between inconsistent courses of action, he will be confined to that which he first adopts. The first election, if made with knowledge of the facts, is itself binding.

9. LIENS — Contract between Debtor and Creditor — Contract Not Binding on Lien Creditors without Notice — Case at Bar. — In the instant case a judgment creditor alleged that the judgment debtors, by reason of an agreement made with it, were estopped from making any defense to the judgment creditor's attack on the validity of a deed. The contract was to the effect that in consideration of the judgment creditor's promise to bid in enough property to satisfy the judgments against the judgment debtors, the wife of the judgment debtor promised to permit the proceeds of the sale to be applied on the debts of her husband. It is conceded that the judgment creditor did not carry out its undertaking.

Held: Therefore, that the agreement was not binding upon the judgment debtors.

10. CONTRACTS — Breach of Contract — Party Breaching Contract Cannot Enforce It against the Other Party. — A contract is based upon the mutual promises of parties. The party who commits the first breach of a contract is not entitled to enforce it, or to maintain an action thereon, against the other party for his subsequent failure to perform.

11. FILING PLEADINGS AND PAPERS — After Case Had Matured at Rules — Section 6122 of the Code of 1930 — No Term of Court before Maturity of Case. — Ordinarily, when a case has matured at rules, no pleading thereafter lodged with the clerk may be, strictly speaking, a paper filed in the cause; but where a statute, such as section 6122 of the Code of 1930, requires a pleading to be filed within a given time, and there is no term of court between the maturity of the case at rules and the expiration of the time fixed by statute, the filing of such pleading in the clerk's office within the time required is sufficient to bar the running of the statute. This should be followed by an order of the court spread upon the record at the next succeeding term.

12. FILING PLEADINGS AND PAPERS — After Case Had Matured at Rules — Section 6122 of the Code of 1930 — No Term of Court before Maturity of Case — Case at Bar. — In the instant case it did not appear that counsel was able to procure the original petition until after he had prepared and filed the answers. No delay was occasioned by appellants' action. There was no regular term of court between the maturity of the case at rules and the April term. Under the circumstances the Supreme Court of Appeals found no error in the ruling of the court ordering the answers to be filed.

Appeal from a decree of the Circuit Court of Buchanan county. Decree for complainants. Defendants appeal.

The opinion states the case.

S. H. & George C. Sutherland, for the appellants.

H. Claude Pobst, for the appellees.

HUDGINS, J., delivered the opinion of the court.

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."

1, 2 The last amendment adopted in 1932 to subsection 8 of section 5 of the Code (Acts 1932, ch. 31), provides 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 months 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 months period, the time the petition was in the hands of this court, and unacted upon, is excluded. See Code, section 6355. The execution of the appeal bond was completed November 9, 1933;...