Neale v. Utz

• Decision Date: 21 April 1881
• Parties: NEALE AND AL. v. UTZ AND AL.
• Court: Virginia Supreme Court

75 Va. 480

NEALE AND AL. v. UTZ AND AL.

Supreme Court of Appeals of Virginia.

April 21, 1881

1. Where process was served upon a defendant in an action of debt, on the day on which he was convicted of a felony, but before the conviction had taken place, and in that action a judgment by default was obtained against the defendant while he was confined in the penitentiary, the court having fairly acquired jurisdiction of the cause, the doctrine of relation does not apply so as to override and avoid the process.

2. Under such circumstances, the utmost that could have been exacted of the plaintiff was a suspension of all proceedings until the disability was removed, or the appointment of a committee to defend the suit for the convict; and although neither course was pursued, the judgment is not void, but voidable, and cannot be assailed collaterally in a court of equity, or elsewhere.

3. Where a court has fairly acquired jurisdiction of a cause and the parties, that jurisdiction continues, notwithstanding the subsequent disability of the defendant.

4. Whether a judgment be the act of the court, or be entered up by the clerk under the statute, the effect is the same; in either case it is the act of the law, and until reversed by the court which rendered it, or by a superior tribunal, it imports absolute verity, and is as effectual and binding as if pronounced upon a trial on its merits.

5. As a generai rule, the law does not regard fractions of a day; but this rule is departed from in many cases where the purposes of justice require it. Courts would be very slow to decide that a man by a fiction of law is to be considered a felon before the conviction has actually taken place.

6. When a suit in equity is brought by a judgment creditor to enforce his lien against the land of his debtor, and persons claiming to be purchasers of the debtor's land complain that they were not made parties to that suit, their remedy, if they have notice of the suit, is by motion or petition to be made parties defendant thereto, and not by an independent suit to set aside the decree in the other cause, upon the principal ground that the judgment therein sought to be enforced was itself void.

In October, 1876, Wm. T. Neale and Jno. E. Warberton filed their bill in the circuit court of King William county, in which they state that on the 18th of November, 1873, Wilton S Lipscomb was found guilty of a felony and sentenced by the court to imprisonment in the penitentiary of the State for one year. That on the same day and after said sentence, one David Utz sued out of the clerk's office of the court a writ in a common law suit in debt against the said Lipscomb which was served after the said sentence. That on its return to the clerk's office a common order was at the first rules thereafter entered against said Lipscomb, which at the second rule day was confirmed; and on the 21st of April 1873, after said Lipscomb was actually confined in the penitentiary, there was an office judgment entered up against him in favor of said Utz for the sum of $202.50, with interest, & c. That after the judgment Utz instituted a suit in chancery to subject the real estate of Lipscomb to the payment of his judgment, and had the summons served upon Lipscomb in the penitentiary, and there was a decree nisi entered against him. That the plaintiff Neale heard that a judgment had been obtained against Lipscomb, and as he had purchased from Lipscomb the wood standing on his real estate, he employed counsel to look into the matter, and at the next term of the court, the said counsel having called the attention of the court to the fact that Lipscomb was a felon civiliter mortuus, the court ordered the suit to be dismissed.

They further state that when Lipscomb had served his time in the penitentiary, and had returned to King William county, the plaintiff Neale purchased of him his real estate, consisting of ninety-two acres of land in the said county, and received from him a deed for the same, dated the 16th of November 1874; and said Neale afterwards sold to said Warberton forty-five acres of the said real estate, and conveyed it to him.

They further state that after the purchase of said land Utz instituted another suit in this court against the said Lipscomb as the sole defendant, although the deeds of the plaintiffs were on record in the clerk's office of the county court of the county, to subject the said real estate to the payment of said judgment, which being undefended by said Lipscomb, and the existence of the same being known to the complainants, the bill was taken for confessed at the last term of the court, and a decree entered directing a sale of the real estate in the bill mentioned, which is the same real estate owned by the complainants. And that the commissioner has advertised the land to be sold at, & c.

They charge that the said judgment is null and void, the said Lipscomb having been civiliter mortuus at the time the same was entered up, and therefore that it is not a lien on the land; and that the decree for the sale of the land having been obtained upon a suppression of the facts of the case, and without notice to the complainants, who are the owners of the land, was a fraud upon them, and should be set aside. And making Utz and the commissioner parties defendants, they pray that the sale may be enjoined; the decree set aside; that the judgment may be declared null and void, and for general relief. The injunction was granted.

Utz and the commissioner answered the bill. They deny that the writ in the common law suit was served on Lipscomb after he was sentenced to the penitentiary. They say it was served on him pending the trial for felony and before Lipscomb's conviction, and before any civil disabilities had attached to him; that the case then proceeded regularly to office judgment, which was effectual as a lien. They say that Neale bought the land with notice of the judgment, which was docketed May 1st, 1874, before the conveyance to Neale. That Utz did not make the plaintiffs parties because he regarded them as without title, as they bought with full notice of his judgment. They deny that plaintiffs did not have notice of the said suit and the proceedings therein; and they say that one of the plaintiffs was a party in it and served with process, and that he had been notified by the commissioner who took the account in the case. They deny that the bill was taken for confessed at the last term of the court, and say it was taken for confessed at the November term, 1875, and the decree for sale was made at the April term, 1876, after a decree for account and the report of the commissioner. And they insist that the plaintiffs cannot avail themselves of a defence which Lipscomb did not make in the common law suit, and does not now, and did not in the chancery suit.

It appears that in July, 1873, Lipscomb conveyed to O. M. Winston the land in controversy to secure to Robert Neale and John E. Warberton any and all sums of money which they might expend for and on account of any expenses incurred for and in behalf of said Lipscomb, during the trial of said Lipscomb; and Winston, Robert Neale and Warberton, as well as Lipscomb, were parties in the suit, and were served with notice by the commissioner who took the account of debts under the decree of the court. As to the service of the writ in the action of debt by Utz against Lipscomb, it appears that it was served before the trial was ended, and probably before it was commenced, though on the same day.

The cause came on to be heard on the 7th of July, 1877, when the court dissolved the injunction and dismissed the bill, with costs; and the plaintiffs obtained an appeal.

Geo. P. Haw, for the appellants.

Wm. R. Aylett and L. R. Page, for the appellees.

OPINION

STAPLES, J.

The appellant Neale is the purchaser of a tract of land subject to the lien of the appellee's judgment. The object of the bill is to vacate that judgment upon the ground that it was recovered whilst the debtor was under confinement in the penitentiary upon a conviction of felony. The appellant admits that he purchased the land with notice of the judgment.

It may be that if, as he claims, the judgment is utterly void, he as such a purchaser, has the right to have it so declared, and thus have removed out of his way a cloud upon the title. For it is well...