Moon's Adm'r v. Welleord

• Decision Date: 17 November 1887
• Citation: 4 S.E. 572,84 Va. 34
• Parties: Moon's Adm'r v. Welleord, Judge.
• Court: Virginia Supreme Court

4 S.E. 572

84 Va. 34

Moon's Adm'r

v.Welleord, Judge.

Supreme Court of Appeals of Virginia.

November 17, 1887.

1. Mortgages—Foreclosure—Parties.

A corporation mortgaged all its assets, and suits were instituted lor foreclosure. An unsecured judgment creditor, whose judgment was obtained subsequent to the execution of the mortgage, filed a petition praying to be admitted as a party defendant. Held, that he had such an interest in the subject-matter of the suit as entitled him to bo admitted as party to the same.

2. Mandamus—To Compel Admission as Party to Suit—Remedy by Appeal.

On refusal of the petition of an unsecured judgment creditor of a corporation to be admitted as a party to foreclosure proceedings pending, upon a mortgage given by a corporation, the creditor's remedy is by appeal, and not mandamus.

3. Same—Return op Judge-Objectionable Matter—Responsiveness.

In his petition for a mandamus to compel the judge of the circuit court to grant a certain order, counsel for the petitioner made implied charges against the fair ness and good conduct of the judge in the matter. The return of the judge charac terized the allegations as "irrelevant and impertinent, » « * and thrust [bycounsel] before this court under his privilege as counsel." On motion to require the return to be purged by striking out the portions objected to, as personally and professionally offensive to counsel for petitioner, held that, while not sanctioning the harsh and objectionable matter in either the petition or the return, inasmuch as the latter was caused by, and responsive to, the former, the motion would be denied.

Application for writ of mandamus.

This is an application for a peremptory writ of mandamus to the Honorable Beverly R. Wellford, judge of the circuit court of the city of Richmond, to permit petitioner to be made party to a certain suit.

R. T. Huhard and Edgar Allan, for petitioner. W. W. Gordon, Christian & Christian, Johnston, Williams & Boulware, and Guy & Gilliam, for respondent.

Fauntleroy, J. The administrator of George Moon, deceased, on the second day of July, 1886, recovered a judgment in the circuit court of the city of Richmond for $3,000, with interest from July 2, 1884, and costs, against the Richmond & Alleghany Railroad Company, for damages for the killing of his said intestate, Moon, on the said defendant's railroad. Previously to the recovery of the said judgment, the said Richmond & Alleghany Railroad Company had made and recorded two mortgage or trust deeds, embracing all or most of the assets of the said company. Suits were instituted in the said circuit court of the city of Richmond by the trustee in the said mortgage or trust deeds to compel liquidation, and to enforce the execution or foreclosure of tlie said mortgages, and subject the entire assets of the said railroad company to the payment of its debts in proper order of liens, etc. Receivers were appointed by the said circuit court to take charge of the said defendant railroad, and all its property, and to operate the road, which was insolvent. Pending these suits, on the ninth day of December, 1886, the appellant here, Moon's administrator, by his counsel, presented to the said circuit court a petition on behalf of himself, and of all other of the unsecured creditors of the said Richmond & Alleghany Railroad Company who should elect to come in and contribute, etc., and praying that the said administrator, and said other unsecured creditors of the said company, might be admitted and made parties defendant to the said suits, whose object was to sell and administer all of the assets, real and personal, of the said corporation; and be thus admitted and enabled to defend their rights, and to procure payment of their debts out of the assets of the said railroad company involved in the said suits, and contended for by the said trustees, to the exclusion of the said Moon's estate. On motion, the said circuit court of the city of Richmond refused leave to Moon's administrator to file his said petition, or to allow him or the other unsecured creditors to become parties to the pending suits for foreclosure of the mortgage deeds; directing them, for relief, to the master commissioner, or to a separate and independent suit of their own. To this ruling Moon's administrator excepted; and he presented his petition to the judges of this court praying for its writ of peremptory mandamus to the appellee, the Honorable Beverly R. Wellford, judge of the said circuit court of the city of Richmond, commanding him to permit the administrator of Moon, for himself and other unsecured creditors, to be made parties to the said foreclosure suits already pending in the said court against the said Richmond & Alleghany Railroad Company, with leave to file a cross-bill in the said pending suits; and praying, in the alternative, that, in the event that this court shall consider that the petitioner has mistaken his remedy, by mandamus, the petition be not wholly dismissed, but be held and taken as a petition for appeal from and su-persedeas to the order or judgment of the circuit court refusing leave to file the petition tendered, either as a petition or cross-bill. On this petition there issued from this court a rule nisi on the said judge of the circuit court, to which rule he has made return and answer, to which return and answer Moon's administrator has demurred, as insufficient in law, and objecting strenuously, upon the argument of the legal question presented for the consideration of this court by the...