Johnston v. Pearson

• Citation: 93 S.E. 640
• Case Date: September 20, 1917
• Court: Supreme Court of Virginia

93 S.E. 640
(121 Va. 453)

JOHNSTON.
v.
PEARSON.

Supreme Court of Appeals of Virginia.

Sept. 20, 1917.

[93 S.E. 641]

Appeal from Circuit Court, Giles County.

Suit by Thomas J. Pearson against H. G. Johnston and others. Decree for complainant, and defendant Johnston appeals. Reversed, and bill dismissed.

W. B. Snidow, of Pearisburg, for appellant.

Williams & Farrier, of Pearisburg, and Jackson & Henson, of Roanoke, for appellee.

BURKS, J. This is a bill filed by a judgment creditor against the administrator and heirs of the debtor, who had died, to subject her land to the lien of the judgment. The bill alleged that the debtor owned no personal estate at the time of her death, out of which the plaintiff's judgment could be collected. No answer was filed by either of the defendants, but the administrator and one of the heirs filed separate pleas of the statute of limitations, setting forth that only one execution had issued on the complainant's judgment within 10 years from its date, and that the execution so issued was returnable more than 90 days from its date, and hence was void. Special replications were filed to each of said pleas, but they denied no facts stated in the pleas, and at best amounted to no more than demurrers. At the hearing the complainant asked leave to dismiss his suit as to the administrator, which motion the administrator resisted. The court, however, permitted the dismissal, and, proceeding to hear the case on its merits, decided that the execution, though returnable more than 90 days after its date, was not void, but voidable only, and, not having been avoided, the judgment constituted a lien on the defendant's land. From that decree this appeal was taken.

Two errors are assigned by the appellant:

1. That the trial court erred in permitting the appellee to dismiss his suit as to the administrator of the judgment debtor.

As the personal property of the decedent is the primary fund for the payment of his debts, his personal representative is a necessary party to any suit by which such fund is to be affected. He was a proper party to this suit, and it should not have been dismissed as to him, but (notwithstanding what is said in Beall v. Taylor, 2 Grat. [43 Va.] 535, 44 Am. Dec. 39S), where the pleadings admit that the debtor died without personal assets and no relief is sought against his personal representative and no accounting by him is asked, he was not a necessary party. But the error in permitting the plaintiff to dismiss as to the personal representative of the debtor was harmless, as the heir was permitted to, and did, make the same defense set up by the administrator.

2. The second error assigned is the ruling of the trial court that an execution returnable more than 90 days from its date is a merely voidable process and not void.

If the execution be merely voidable, it is valid until avoided, and its invalidity cannot be set up in a suit to enforce the judgment, as this would be a collateral attack upon the judgment, which is not permissible (Fulkerson v. Taylor, 102 Va. 314, 46 S. E. 309), but if it be void, it is a nullity, and that fact may be shown by anybody, anywhere, and at any time.

If the question were res Integra, we might find difficulty in holding the execution in this case to be a void process in the sense of an absolute nullity, but we cannot hold it to be merely voidable without overruling a number of prior decisions of this court and endangering vested rights.

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