Lowenbach's Adm'r v. Kelley

• Decision Date: 17 November 1910
• Citation: Lowenbach's Adm'r v. Kelley, 69 S.E. 352, 111 Va. 439 (1910)
• Parties: LOWENBACH'S ADM'R et al. v. KELLEY.
• Court: Virginia Supreme Court

69 S.E. 352

(111 Va. 439)

LOWENBACH'S ADM'R et al.

v.KELLEY.

Supreme Court of Appeals of Virginia.

Nov. 17, 1910.

1.Estoppel (§ 68^*)—Position in Litigation.

A creditor recovered a judgment against his debtor, and later obtained a default order on scire facias to review the judgment, and issued another execution.The administrator of the creditor sued to subject to the judgment lands alleged to have been conveyed by the debtor to his wife in fraud of creditors, in which suit the trustee in bankruptcy of the creditor intervened claiming to own the judgment on which the action was founded.Held, that he could not thereafter complain at being made a party to a motion by the debtor to quash the second execution on the validity of which his right to sustain his creditor's suit depended.

[Ed. Note.—For other cases, seeEstoppel, Cent. Dig. §§ 165-169;Dec. Dig. § 68.*]

2.Execution (§ 163*)—Motion to Quash— Time.

A motion to quash a fi. fa. based upon a sci. fa. which revived a judgment, but which was made returnable six months after its date, and was, therefore, void, being in direct conflict with section 3220 of the Code of 1904, providing that all process, etc., shall be returnable within 90 days, will not be barred because of laches, where no prejudice has resulted to the judgment creditor from the delay, the statute of limitations having run when the fi. fa. was issued.

[Ed. Note.—For other cases, seeExecution, Cent. Dig. § 476;Dec. Dig. § 163.*]

3.Execution (§ 163*)—Motion to Quash— Nature of Remedy.

The motion to quash is a substitute for the common-law writ of audita querela, and is governed by the same rules of limitation.

[Ed. Note.—For other cases, seeExecution, Cent. Dig. § 476;Dec. Dig. § 163.*]

4.Execution (§ 163*)—Motion to Quash— Limitations.

The writ of audita querela, although a personal action, is not governed by the statute of limitation in regard to personal actions unless specially named; therefore, a motion to quash which follows the same rules as an audita querela is not void, by relation to the five-year limitation in personal actions.

[Ed. Note.—For other cases, seeExecution, Cent. Dig. § 476;Dec. Dig. § 163.*]

5.Execution (§ 163*)—Motion to Quash— Time for Making.

A motion to quash a fi. fa. will lie though it is not alive, for the execution creditor might as soon as it was issued direct the sheriff to return it without knowledge of the execution debtor, thus depriving the debtor of any chance to object.

[Ed. Note.—For other cases, seeExecution, Cent. Dig. § 476;Dec. Dig. § 163.*] Error to Circuit Court, Rockingham County.

Action by Lowenbach's administrator and others against John E. Kelley.Prom a judgment for the defendant, plaintiffs bring error.Affirmed.

Roller & Martz, for plaintiffs in error.

Conrad & Conrad and Tavenner & Bauserman, for defendant in error.

BUCHANAN, J.This is a writ of error to a judgment of the circuit court of Rockingham county quashing a writ of fieri facias.

A judgment in favor of M. Lowenbach, a cent for John Smith, against John E. Kelley, was rendered at the October term, 1882, of that court.In November of that year a fi. fa. was issued thereon, and returned no property found.In April, 1902, a scire facias was sued out on the judgment and made returnable to the 10th day of October following.At the April term, 1903, of the court, the defendant not appearing, an order was entered providing that the plaintiff might have execution upon the judgment.In May of the same year a fi. fa. was issued returnable to the first July rules, and was returned indorsed, "Returned by order of plaintiff's counsel."In the year 1906 a suit was instituted by Charles R. Lowenbach, who claimed to be the assignee of the judgment, to enforce the same by subjecting certain lands which he alleged the judgment debtor, Kelley, had fraudulently conveyed or caused to be conveyed to his wife.That suit, before a hearing, was dismissed without prejudice to the rights of any party in interest.In February, 1907, the personal representative of M. Lowenbach instituted a suit in chancery against Kelley and wife, to subject to the payment of the said judgment certain lands which it was charged Kelley had conveyed to his wife to hinder, delay and defraud his creditors.

Upon the 16th of November, 1908, after this cause was submitted to the court for decision, notice to quash the fi. fa. issued in May, 1903, was given to the personal representative of M. Lowenbach and to Benjamin Rosenheim, trustee in bankruptcy for M. Lowenbach.

The first error assigned is that the court erred in not dismissing the motion as to Rosenheim, trustee in bankruptcy.

The ground upon which this motion to dismiss was based is that he was not a party of record to the original judgment, nor to any proceedings had in connection with issuing the fi. fa. sought to be quashed.

In the chancery cause instituted in 1907 by Lowenbach's administrator to enforce said judgment, Rosenheim, trustee in bankruptcy, filed his petition, and asked to be made a partycomplainant in the cause, on the ground that the legal title to the judgment was in him as such trustee, and that the judgment belonged to the bankrupt's estate.Having claimed in that cause that the legal title to the judgment was in him as such trustee, he cannot complain that he was made a party to the motion to quash the fi. fa. issued on the judgment, and upon which he relies in the chancery case as keeping the judgment alive.

Another error assigned is that Kelley is precluded by reason of his laches from maintaining his motion to quash.

It is no doubt true, as suggested by Judge Moncure in the case of Beale's Adm'r v. Botetourt Justices, etc., 10 Grat. 278, 282, that a judgment debtor may lose his right to have an execution quashed for an irregularity after long acquiescence, where the judgment creditor may have lost his evidence to show that the execution was properly issued, and when his judgment may be barred by the statute of limitations.The ground of the motion to quash in this case is not a mere irregularity in issuing the execution, which rendered it voidable, but a defect...