Maddock's Adm'x v. Skinker

• Decision Date: 30 July 1896
• Parties: MADDOCK'S ADM'X. v. SKINKER et al.
• Court: Virginia Supreme Court

93 Va. 479

25 S.E. 535

MADDOCK'S ADM'X.

v.SKINKER et al.

Supreme Court of Appeals of Virginia.

July 30, 1896.

Appeal—Amount Involved—Report of Commissioners—Firm Property—Individual Claim.

1. Where an administrator of a deceased member of a firm controverted a certain claim wholly as a liability of the firm, but the court established it against the firm, and decreed that a debtor of the firm, who was a party to the suit, should pay such claim, and pay half the residue of his indebtedness to the administrator, the amount in controversy, for purpose of appeal by the administrator, is the whole amount of the claim against the firm, for which the estate of intestate would be liable if it was not paid otherwise.

2. A report of a commissioner, made pursuant to the decree of the court, which did not direct return of the evidence, will, in the absence of error apparent on its face, be taken as prima facie correct, unless steps are taken to place before the court the evidence on which it is based.

3. Property of a partnership is not subject to a judgment of an individual creditor till payment therefrom of the firm debts, and adjustment of the accounts of the partners as between themselves.

Appeal from hustings court of Roanoke; William Gordon Robertson, Judge.

Suit between Frank Maddock's adminis-tratrix and J. H. Skinker and others. From a decree the administratrix appeals. Reversed.

Griffin & Glasgow, for appellant.

Scott & Staples, for appellees.

RIELY, J. A motion was made by the appellees to dismiss the appeal on the ground that the matter in controversy is merely pecuniary, and, exclusive of costs, is less in value or amount than $500. The matter in controversy, however, is the entire amount of the judgment claimed by J. M. Gambill & Co., which, inclusive of principal and interest, amounted at the date of the decree to $951.79. The appellant controverted it wholly as a liability of the late firm of Mad-dock & Evans, but the court established it against the partnership for the full amount. It appearing that certain attorneys, who were parties to the suit, were indebted to the firm of Maddock & Evans, for moneys collected, In the sum of $2,196.93, the court decreed that they pay to Gambill & Co. the amount of their debt; and, dividing the residue or the indebtedness into two equal parts, it decreed that they pay one of' these parts which amounted to the sum of $622.57, to Jean W. Maddock, the appellant, as administratrix of Frank Maddock, deceased. It was, therefore, contended by the appellees that the only amount in controversy is the difference between $622.57 and one-half of $2,196.93, the amount due from the attorneys, to wit, the sum of $476".90. But this Is not correct The court, by its confirmation of the report of the commissioner, established the entire amount of the judgment claimed by Gambill & Co., and thereby fixed the liability for it upon the individual estate of the appellant's Intestate, as well as upon the late firm of Maddock & Evans, of which he was a member. No part of the judgment has been paid, and if it should happen that it be not paid by the attorneys, the estate of Frank Maddock, deceased, would remain liable for the whole $951.79; and it is this amount which constitutes the matter in controversy upon the appeal.

The first assignment of error is the bare statement that it was error for the court to confirm the settlement of the partnership accounts, because the same was without sufficient evidence to sustain it Neither In the petition for the appeal nor in the oral argument did counsel indicate in what respect the evidence was insufficient to sustain the settlement made by the commissioner. It is in accordance with the evidence, and this assignment of error need not be further considered.

The appellant excepted to the report of the commissioner because he allowed the claim of Gambill & Co. as a subsisting judgment against Maddock & Evans without any proof (it was alleged) that there was such a judgment against the firm, and because the evi dence showed that, if any debt was due, it was the personal debt of Evans, and not a debt of the firm. The court overruled the exception, confirmed the report, and decreed, as we have seen, the payment of the judgment out of the assets of the firm. This action of the court constitutes the only other assignment of error. It is to be observed that the exception did not deny that there was such a judgment, but simply claimed that it was allowed without any proof. The report of the commissioner was made in obedience to the decree of the court, and, except for error apparent on its face, it was to be taken as prima facie correct, unless steps were taken to place before the court the evidence on which it was based, or it was shown, by the deposition of the clerk of the court in which the judgment was alleged to have been recovered, or otherwise, that there was no such judgment. This was not done. The commissioner stated that his report was made up from certain depositions, and "from the records of the clerk's office of your honor's court." It does not appear that he was directed by the court, or requested by the appellant, to return the evidence on which he reported the judgment..It was not his duty to do so, unless so directed or requested; and, the appellant not having taken steps to bring the evidence before the court, it could not review the finding of the commissioner, and the exception could not avail her. Shipman v. Fletcher, 91 Va. 473, 478, 22 S. E. 458; Saunders v. Prunty, 89 Va 921, 17 S. E. 231; Bowden v. Parish, 86 Va. 67, 9 S. E. 616.

It appears from the deposition of J. M. Gambill that Evans,...