Kendrick v. Whitney
| Decision Date | 12 July 1877 |
| Citation | 69 Va. 646 |
| Court | Virginia Supreme Court |
| Parties | KENDRICK & als. v. WHITNEY & als. |
1. There is no statutory bar to the time within which a petition may be filed to correct error in an interlocutory decree.
2. Whether in such case a rehearing shall be granted, depends upon the sound discretion of the court upon all the circumstances of the case.
3. The motion to correct error in a judgment or decree by default given by ch. 177, § 5 (Code of 1873), is barred after the lapse of five years from the date of the judgment or decree.
4. That statutory remedy is, however, cumulative, and has not superseded or abolished petitions for rehearing, which may still be had, according to the course of equity, in the same manner as before the enactment of that statute.
5. Though the motion here, if treated as made under ch. 177, § 5, is barred by the lapse of time, still, inasmuch as the notice, on which that motion was founded, was signed by counsel, was served upon all the parties in interest, and was regularly filed, and contained all the requisites of a petition for a rehearing, it will be treated as a petition for a rehearing and relief given accordingly.
6. It is error to decree a sale of land before taking an account of the liens thereon, and their respective priorities.
7. When a deed of trust has been given upon land by a debtor to protect his sureties on the debt against harm, it is error to decree a sale of the land before making the creditor a party to the suit.
8. Where judgment creditors file their petitions in a suit for the sale of their debtor's land, it is error to enter a decree for sale in their favor, before referring the cause to a commissioner, so that the judgment debtor may have an opportunity of showing any payments made, or set-offs to which he may be entitled.
This was a suit in equity in the circuit court of Scott county brought in November 1859, by Whitney, Cushing & Comstock partners, to subject the land of George H. Kendrick to satisfy a judgment they had recovered against him. The bill states that they recovered a judgment for $125, with interest, against Kendrick on the 3d of February 1856, which was docketed on the 9th of November 1858. That, by deed dated the 12th of August 1857, Kendrick had conveyed a tract of land to John A. Mann, in trust to secure H. F. Kendrick and William Nash, his sureties, in a debt of $1,065.66, due to Kent, Paine & Kent. This debt, plaintiffs were informed and believed, had been paid. That on the 20th of October 1858 Kendrick had conveyed the land to said Mann, to secure a debt of $895.58 to one William Dingus. They charge that at the time of executing this deed Mann and Dingus had notice of their judgment; and that said debt has been fully paid; but be that as it may, they claim priority over it, and charge that said deed was made to hinder and defraud the plaintiffs in the collection of their debt.
George H. Kendrick, John A. Mann, Henry F. Kendrick, William Nash and William Dingus were made parties defendant to the bill; but none of them answered. The cause was set for hearing at the March rules for 1860. At the May term of the court Hubbard, Gardner & Carlton and Smith & Roberts filed their petitions, claiming to be creditors by judgment of George H. Kendrick, recovered at the November term 1856 of the county court of Scott county, the first for $408.64, with interest, and the second for $294.47, with interest. Although no order seems to have been made admitting the petitioners as defendants, their names were inserted in the bill, and they filed their answers.
On the same day on which these petitions and answers were filed, the cause came on to be heard on the answers of Hubbard, Gardner & Carlton and Smith & Roberts, and the bill taken for confessed as to Kendrick, Mann and the other parties originally made parties by the bill; and the court decreed that the complainants, Hubbard, Gardner & Carlton and Smith & Roberts, should respectively recover against George H. Kendrick the amount of their judgments. And that time be given to said Kendrick to pay the said sums decreed against him until the 10th of September next; and in case of his failure to pay the same, a commissioner was appointed with direction to sell the land, or so much thereof as might be necessary, to pay the said decree, & c., on a credit of six, twelve and eighteen months. And he was directed to report his proceedings to the court.
Nothing seems to have been done under this decree; but the cause was regularly continued until the March term 1874 of the court, when George H. Kendrick, Henry F. Kendrick, William Nash, and John A. Mann, filed a notice to Whitney, Cushing & Comstock, Hubbard, Gardner & Carlton, and Smith & Roberts, and their counsel, that they would at the March term of the court move the court to reverse, vacate and annul the decree made in the cause in May 1860. The notice was signed by counsel, and sets out the case and the decree by default in favor of the different parties, and the appointment of a commissioner to sell the land. And it sets out the errors on which they rely for the reversal of the decree. Such of these errors as were acted on by this court are sufficiently stated in the opinion of Judge Staples. Service of the notice was acknowledged by the counsel of the parties on the 19th of November 1873.
The motion was fully argued at the March term of the court, but the case was retained for consideration until the August term, when the court held that by the fifth section of chapter 177, of the Code of 1873, the motion authorized by that section of the Code must be made before the judge in vacation, or the court in term, within five years from the rendition of the decree or judgment complained of; and if the motion comes within the seventh section of the act of 1866, yet more than five years had elapsed between the date of the decree and the motion made on the 2d day of March term last past. The motion was therefore overruled, but without prejudice to the rights of the parties to seek relief in the cause, which was still pending in the court, in any legitimate mode, by petition, motion or otherwise, as they may be advised. And thereupon George H. Kendrick, and the other plaintiffs in the motion, applied to this court for an appeal; which was allowed.
Wm. H. Burns, for the appellants.
P. Hagan and Morrison, for the appellees.
The appellants moved the circuit court of Scott county, at the March term 1874, to reverse an interlocutory decree by default of the same court rendered on the 17th May, 1860. It appears that the notice upon which the motion was founded was served the 19th November, 1873. If the date of serving the notice be adopted as the true time, rather than the date of making the motion, and if the period provided for by the seventh section of the act of March 3d, 1866, known as the stay law, be excluded from the computation, still the motion was not made in five years from the date of the decree of the 17th May, 1860. It was upon this ground the learned judge of the circuit court refused to entertain the motion, and not because in his opinion the decree of 1860 is correct.
The appeal in this case brings in review the correctness of that decision. The motion, it is insisted, was made under the fifth section of chapter 181, Code of 1860; and the question is as to the true interpretation of that section and the one immediately following. It is there provided, that the court in which there is a judgment by default, or a decree on a bill taken for confessed, or a judge of said court in vacation thereof, may on motion reverse such judgment or decree for any error for which an appellate court might reverse it, if the following section (which is the sixth) was not enacted, and give such judgment as ought to be given. It is further provided that every motion under that chapter (181) shall be after reasonable notice to the opposite party, his agent or attorney in fact or at law, and shall be within five years from the date of the judgment or decree.
The sixth section provides that no appeal, writ of error or supersedeas shall be allowed by an appellate court, or judge, for any matter for which a judgment or decree is liable to be reversed or amended, on motion, as aforesaid, by the court which rendered it, or the judge thereof in vacation, until such motion be overruled in whole or in part.
There is no difficulty in regard to the proper construction of these two sections, as applied to final decrees by default. Under former laws, the limitation upon the right of appeal was five years. The same limitation was by analogy prescribed for motions under the fifth section just cited. The object of that section, as stated by Judge Allen, in Davis, sheriff, v. Commonwealth, 16 Gratt. 134, 137 was to save parties the delay and costs of an appeal to correct irregularities and formal errors, which seldom affect the merits of the controversy, and which would have been corrected at once by the court if pointed out. See also Hill et als. v. Bowyer et als, 18 Gratt. 364. As the party aggrieved could after the lapse of five years take no appeal from a final decree, it was proper to apply the same limitation in case of a motion which in such case is made a substitute for an appeal. All this is plain enough. The real...
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