Lavell v. McCurdy's Ex'rs

Decision Date04 October 1883
Citation77 Va. 763
PartiesLAVELL AND JORDAN v. MCCURDY'S EX'ORS.
CourtVirginia Supreme Court

Appeal from decrees of the circuit court of Rockbridge county rendered 26th November, 1881, and 1st April, 1882 respectively, in the chancery cause of A. A. McCurdy and William T. McCurdy, executors of John McCurdy, deceased, and other judgment creditors of William Jordan against J. D Lavell, William Jordan and others. In 1864 John McCurdy got judgment in said court against William Jordan and his sureties for $1,200, interest and costs, subject to sundry small credits. This judgment was never docketed anywhere. Others also obtained judgments against Jordan. On 21st November, 1871, he was regularly discharged as a bankrupt. John McCurdy having died, his executors, at April term, 1872 of said court, had issued a writ of scire facias, suggesting the death of John McCurdy, against William Jordan and his sureties, to show why those executors should not have execution of said judgment, which writ was executed upon William Jordan and his sureties, who appeared and demurred to the writ; but the demurrer was overruled. Thereupon the court rendered judgment upon the scire facias for the sum of $1,200, and interest and costs, subject to the sundry small credits, as specified in the original judgment. This judgment on the scire facias was docketed in Rockbridge and Augusta counties, where William Jordan then owned some lands, and where were lands aliened by him to Lavell and others since the rendition of this judgment. In January, 1881, those executors and others filed their bill to enforce the lien of the judgment on the scire facias, and other judgments, on the said lands. The defendants demurred, and answered, denying that a judgment on a scire facias creates a lien on lands, that the court had jurisdiction to render the judgment, and that said judgment was valid, and also setting up the bankruptcy of William Jordan as a discharge of the judgment, and other matters of defence. The circuit court overruled the demurrer, and decreed that the judgment on the scire facias be enforced on the said lands in the inverse order of their alienation. From this decree, said Lavell and William Jordan obtained an appeal.

J. M. Quarles, and David May, for the appellants.

S. H. Houston, for the appellees.

OPINION

RICHARDSON, J.

At the April term, 1864, in the circuit court of Rockbridge county, a judgment was rendered in favor of John McCurdy against William Jordan, Samuel F. Jordan, James G. Paxton, and Joseph A. Logan, for the sum of $1,200, with $14, the costs of suit, and with the following credits endorsed: $40, paid September 14, 1861; $76.99, paid June 13, 1860; and $158.62, paid June 1st, 1863. Afterwards--to wit: on the 19th day of December, 1868,--the said William Jordan, who was the principal debtor, the others being his sureties, was adjudged a bankrupt in the district court of the United States, for the district of Virginia, and on the 21st day of November, 1871, was discharged in due form, and thereby was released from said debt.

In the meantime, John McCurdy, the plaintiff in said judgment, having died, on the 11th day of April, 1871, William T. McCurdy and A. A. McCurdy, as executors of said John McCurdy, sued out a writ of scire facias from said circuit court, directed to the sheriff of Rockbridge, setting forth in the usual form said original judgment, the credits thereon endorsed, the death of the plaintiff therein, said John McCurdy, the qualification of his said executors; and reciting that, notwithstanding said judgment, yet execution of the said debt, interest and costs, aforesaid, still remained to be made; and at the instance of the said executors, commanding said sheriff to make known to the said William Jordan, S. F. Jordan, and Joseph A. Logan, surviving obligors of themselves and James G. Paxton, deceased, who were survivors of themselves, and J. J. Whitmore, deceased, that they be before the judge of the said circuit court on the first day of the then next term thereof, to show, if they have anything to say, why the said William T. McCurdy and A. A. McCurdy, as such executors, ought not to have execution against them for the debt, interest and costs aforesaid.

The writ of scire facias thus issued seems to have been regularly executed, and at the next term of said court, designated in said writ, the cause seems to have been on the docket, and, " on motion" (it does not appear by whom made) " and for reasons appearing to the court," was continued. This was on the 28th day of September, 1871, and more than five months after the date and service of the writ. At the next term of said circuit court of Rockbridge, the record shows that the defendants, by counsel, appeared and demurred to said writ of scire facias, and issue being joined on said demurrer, the court overruled the same; and thereupon the said defendants pleaded payment and also nul tiel record; but afterwards withdrew the plea of payment, and issue being joined, the cause was heard and decided upon said plea of nul tiel record, and the court gave judgment, not that the plaintiffs in said writ have execution of the debt therein set forth, but that they recover against the defendants therein $1,200, the debt in the said writ mentioned, with interest and costs, and also the costs in suing out and prosecuting said writ of scire facias; and the judgment on said scire facias has endorsed precisely the same credits endorsed on said original judgment.

The said original judgment does not appear ever to have been docketed anywhere, but said judgment on scire facias was, on the 11th day May, 1872, docketed in the county of Rockbridge, and afterwards, to-wit, on the 15th day of December, 1874, was docketed in Augusta county, and also in the city of Staunton.

At the time, and after the docketing of the judgment on said scire facias, said William Jordan, the principal debtor, owned several lots of land, some of which were situated in said city of Staunton, and others in Augusta county, outside of said city. Subsequent to the docketing of said judgment in said county of Augusta and city of Staunton, said William Jordan aliened several of the lots or parcels of land, so owned by him, to different persons. In January, 1881, William T. McCurdy and A. A. McCurdy, as executors of said John McCurdy, filed their bill in equity in the circuit court of Augusta county, in their own right and on behalf of other unsatisfied creditors by judgment of said William Jordan, against said Jordan, the other defendants in said proceeding by scire facias, and also against the several alienees of said Jordan, to enforce the alleged lien of said judgment on scire facias against the said aliened lands in the hands of said Jordan's alienees and persons claiming under one of them as devisees.

The suit in equity thus instituted was matured on the part of the complainants for hearing. William Jordan, the principal debtor in said judgment, and others, his alienees, severally demurred to and answered said bill. The answers are substantially the same. They each deny the existence of the judgment in question as a lien upon their lands, inasmuch as the original judgment was never docketed in Augusta county and insist that the judgment on scire facias, though docketed in said county of Augusta, being a judgment not for execution according to the writ, but a judgment for money, was without notice to the defendants, unauthorized by law, and beyond the scope and purpose of the writ of scire facias, and therefore void for want of jurisdiction in the court to render the same. They further say that the said writ of scire facias, which they exhibit, is defective, and did not authorize the entering of any judgment thereon, because the statute, section two, chapter one hundred and sixty-six, Code 1873, regulating the time within which process shall be made returnable, provides that process " shall be returnable within ninety days after its date to the court on the first day of a term, or in the clerk's office to the first Monday in a month, or to some rule day; whilst the said writ of scire facias is dated on the 11th day of April, 1871, and made returnable to the first day of the then next term of the court, a period far exceeding the limit prescribed by the statute." And the respondents further rely upon the discharge in bankruptcy of said William Jordan as a complete bar to complainant's right of recovery. Other questions were incidentally raised in the progress of the cause below, but they, as well as the defence of bankruptcy relied on, need not, in the view of the case taken by this court, be taken notice of here. After an account had been...

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16 cases
  • Crumlish's Adm'r v. Central Imp. Co.
    • United States
    • West Virginia Supreme Court
    • 6 Diciembre 1893
    ... ... Such a judgment would be void here by some ... authorities. 2 Bart. Law Pr. 1031; Lavell v ... McCurdy, 77 Va. 763. I have entertained doubts whether ... it would be void, [38 W.Va ... ...
  • Adm&r v. Cent. Imp. Co
    • United States
    • West Virginia Supreme Court
    • 6 Diciembre 1893
    ...judgment quod recuperet, as in an original action. Such a judgment would be void here by some authorities. ¦1 Bart. Law Pr. 1031; Lavell v. McCurdy, 77 Va. 763. I have entertained doubts whether it would be void, as distinguished from voidable, though I have not fully examined the subject. ......
  • Crumlish's Adm'r v. Cent. Imp. Co.
    • United States
    • West Virginia Supreme Court
    • 6 Diciembre 1898
    ...judgment quod recuperet, as in an original action. Such a judgment would be void here by some authorities, 2 Bart. Law Pr. 1031; Lavell v. McCurdy, 77 Va. 763. I have entertained doubts whether it would be void, as distinguished from voidable, though I have not fully examined the subject. B......
  • Va. Hot Springs Co v. Schreck
    • United States
    • Virginia Supreme Court
    • 17 Noviembre 1921
    ...be returnable within ninety days after its date, " and we have held that process which on it face is not so returnable is void. Lavell v. McCurdy, 77 Va. 763. We have also held in a number of cases that a proceeding by motion for a judgment under section 6046 is an action at law. Gordon v. ......
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