Piedmont & A. Life Ins. Co. v. Maury

• Decision Date: 21 July 1881
• Citation: 75 Va. 508
• Parties: THE PIEDMONT AND ARLINGTON LIFE INSURANCE COMPANY v. MAURY AND ALS.
• Court: Virginia Supreme Court

75 Va. 508

THE PIEDMONT AND ARLINGTON LIFE INSURANCE COMPANY v. MAURY AND ALS.

Supreme Court of Appeals of Virginia.

July 21, 1881

Absent, Moncure, P., and Staples, J.

At the first December rules, 1881, C. B. Maury, a creditor of the Piedmont and Arlington Life Insurance Company, filed a bill against the company, alleging its insolvency, asking that the creditors be convened, that amounts of debts and assets be taken, and that a receiver be appointed. At the second December rules J C M and other creditors of the company filed their petition to be admitted as parties plaintiff to the suit. The company answered the bill, and prayed that its answer might be treated as a cross-bill. The plaintiff replied generally, and the cause was set for hearing. At the January term, 1881, of the court, J B and other creditors of the company presented their petitions to be admitted as parties plaintiff to the suit. At that time, no order having been entered by the court either admitting the petitioners as plaintiffs or referring the cause, C M B, the original plaintiff, dismissed his suit by leave of court. HELD:

1. Although M's bill does not in so many words profess to be on behalf of himself and all other creditors of the defendant, yet the case stated and the relief contemplated and prayed make it in substance and legal effect as completely a general creditor's bill as if it had been framed as such in the most technical form.

2. While such a bill may be filed as a matter of convenience yet the creditors described, but not named in the bill, are not parties thereto in any sense; nor do they become so unless and until further action be had in the cause. Until such action, the suit is the suit of the plaintiff on the record, he is the sole dominus litis, and therefore may dismiss it at his will and pleasure.

3. This sole dominion of the plaintiff ceases as soon as the creditors become parties; and they become parties, in a general sense, when a decree or order for a general account is entered, under which they may prove their demands.

4. Until such decree is made, unless previously admitted as parties on the record upon special application, the creditors have no such interest in the suit as entitles them to control it.

5. Before any decree for a general account is entered a creditor may, in a proper case, be admitted a party on the record upon a special application for the purpose; and when that is done he acquires such control of the suit as that it cannot be dismissed without his consent. But the original plaintiff may still dismiss the suit so far as he is concerned, and it may be prosecuted by the other party for his own beneflt.

6. The mere filing of a petition does not operate proprio vigore to make the petitioner a party. To effect this an order of the court is necessary.

7. If M, the original plaintiff, had suffered the petitions to be filed without objection, and the cause had been subsequently proceeded in as if the petitioners had been duly admitted as parties, though no order to that effect had been made, by acquiescence he might have lost his right to dismiss at a subsequent time.

8. The dismissal of the bill necessarily carried with it the answer attempted to be set up as a cross-bill.

This case was argued at Richmond but decided at Wytheville. It was an appeal from a decree of the chancery court of the city of Richmond in a suit brought by C. B. Maury, a policyholder and creditor of the Piedmont and Arlington Life Insurance Company, against the said company and A. R. Blakey, trustee. Two petitions were filed, one at rules by J. C. Miller and others, and the other in court at the succeeding term by J Bussey and others, in both of which the petitioners stated their respective cases and prayed to be admitted as parties plaintiff in the cause. At the time the petition of Bussey was presented, but before any order whatever had been made in the cause, Maury moved to dismiss his suit, which motion was resisted by the petitioners, but was allowed by the court, and from this order the company and the petitioners appealed.

Robert Stiles, for the appellants.

R. L. Maury, Ould & Carrington, for the appellees.

OPINION

BURKS, J.

The bill by the appellee Maury does not in so many words profess to be on behalf of himself and all other creditors of the defendant corporation, but the case stated and the relief contemplated and prayed make it in substance and legal effect as completely a general creditors' bill as if it had been framed as such in the most technical form. Duerson's Adm'r v. Alsop and others, 27 Gratt. 227, 235. After stating the plaintiff's case, it alleges that " there are a vast number of policyholders of said company scattered throughout many States, and that it is now important that they should be convened, their claims and those of all other creditors of said company ascertained and their priorities, and the assets of said company sold and proceeds thereof distributed among those entitled to the same" ; and it prays, among other things, " that all such accounts and inquiries may be taken and made which may be necessary now or may become so hereafter in the progress of the suit" --and that all of the creditors and policyholders of this company be convened and the amount and priority of their claims ascertained and established by a proper reference for the purpose, if necessary," & c.

But it is thoroughly well settled, that while such a bill may be filed as matter of convenience to prevent a multitude of suits and accumulation of costs, and for the ascertainment adjustment and payment of all claims chargeable on the common fund, and where a sale is necessary that such sale may be so made as to be most advantageous, yet the creditors described but not named in the bill are not parties thereto in any sense, nor do they become so unless and until further action be had in the cause. Until such action the suit is the suit of the plaintiff on the record--he is sole dominus litis -- has the absolute dominion of the suit--and therefore may dismiss it at his will and pleasure. But this sole dominion ceases when and as soon as the creditors become parties. They become parties in a general sense as soon as a decree or order for a general account is entered under which they may come in and prove their demands. Until such decree is made, unless previously admitted as parties on the record upon special application, they have no such interest in the suit as entitles them to any control of it. The doctrine is thus stated in a standard work on equity practice: " After a decree has been made of such a kind that other persons, besides the parties on the record, are interested in the prosecution of it, neither the plaintiff nor defendant, on the consent of the other, can obtain an order for the dismissal of the bill. ...