Richardson v. Gardner

• Decision Date: 01 December 1920
• Citation: Richardson v. Gardner, 128 Va. 676, 105 S.E. 225 (1920)
• Parties: RICHARDSON et al. v. GARDNER.
• Court: Virginia Supreme Court

105 S.E. 225

RICHARDSON et al.

v.GARDNER.

Supreme Court of Appeals of Virginia.

Dec. 1, 1920.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]

Appeal from Circuit Court, Pulaski County.

Suit by George T. Richardson and others against R. L. Gardner, trustee, etc.Decree for defendant, and plaintiffs appeal.Reversed.

W. B. Snidow, of Pearisburg, Jno.S. Draper, Jr., of Pulaski, Jackson & Henson, of Roanoke, and Harless & Colhoun, of Christianburg, for appellants.

H. C. Gilmer, of Pulaski, for appellee.

SAUNDERS, J.This is an appeal from a decree of the circuit court of Pulaski county, entered on September 10, 1918, in the chancery cause of Robert L. Gardner, Assignee, etc., v. R. P. Harris et al.

This suit has been pending for many years in the court, supra.Originally it was in the name of R. L. Gardner, Trustee of G. W. Ould, v. R. P. Harris and Carper, Adm'r.Several amended bills have been filed from time to time, and a practical consolidation appears to have been effected of the original suit of Gardner, trustee, and of another suit of C. R. St. Clair v. R. P. Harris.In the ultimate the consolidated proceedings appear on the docket of the circuit court under the style of R. L. Gardner, Assignee, etc., v. R. P. Harris et al.The general purpose of these various bills was to subject the lands of R. P. Harris to the claims of his creditors.

Harris appears to have owned a large amount of real estate, and to have conducted his affairs in a very loose and irregular fashion.At different times, judgments amounting in the aggregate to a considerable sum were recovered against him.His lands were alienated in numerous parcels, and by different and successive conveyances, requiring a tedious and elaborate account to be taken to arrive at the order of their respective liability to the liens considered to be established.

In the course of the long drawn out and unduly protracted proceedings in these causes, various answers were filed, and an account directed to be taken by Commissioner Morton.This account appears to have been thrice recommitted.The last report, filed on August 22, 1917, is a most elaborate, comprehensive, and painstaking document.In this report Commissioner Morton includes as liens upon the estate of R. P. Harris two judgments, one of G. W. Ould v. Moon and Harris, and the other of G. W. Ould v. Moon, Hawley & Co.These judgments are reported as belonging to R. L. Gardner.This report was excepted to by various parties on various grounds.

The case came on to be heard on November 16, 1917, on the report, supra, and exceptions, and various papers recited in the decree.From a recital in this decree it appears that Geo. T. Richardson and Sarah Galway had tendered a petition to rehear and review, which the court declined to allow to be filed.The decree, with certain indicated reservations, overrules the exceptions to the report, and confirms the same.Further, it was provided that, unless the defendants, or some one for them, should within 30 days from the rising of the court pay off the judgment liens and costs of the suit, certain designated commissioners were directed to sell the lands derived from the defendant Harris, pursuant to the terms and directions contained in the decree.

Some time in April, 1918, Geo. T. Richardson, R. C. Croy, and others presented to his honor, A. A. Campbell, judge of the circuit court for Pulaski county, a bill for an injunction.This bill referred to the decree of November, 1917, supra, and the report of Commissioner Morton, alleging that the judgments of Ould v. Moon, Hawley & Co., and of Same v. Moon and Harris, were never properly indexed and docketed, and, not being notice to complainants as purchasers for value, were, as to such complainants, void and of no effect.Complainants averred further that they were entitled to have the decree of November, 1917, reviewed, and the same annulled and rescinded so far as sale of their property was concerned.Alleging irreparable injury and lack of adequate remedy elsewhere, complainants prayed an injunction against the sale of their property until the further order of the court.On April 16, 1918, Judge Campbell granted an injunction according to the prayer of complainants' bill.

On May 13, 1918, Richardson, Croy, and others presented to the circuit court for Pulaski county a petition for rehearing, styled in the record as an "amended petition for a rehearing on injunction."This petition, after reciting in detail the steps that had been taken in the various proceedings against R. P. Harris, alleged that the decree of November, 1917, was erroneous because of errors of fact and law apparent on the face of the record, and because of other "facts and evidence, " presented to the court in the original and amended petition.

The amended petition alleges specifically that the following errors appear on the face of the record, namely:

"That the report of the commissioner fails to show that the alleged judgments in favor of R. L. Gardner, assignee of G. W. Ould, as set out at page 7 of said report, one being against Moon and Harris, and amounting to $854.83, as of August 20, 1917, and the other being against Moon, Hawley & Co., and being for the sum of $1,475.12, as of August 20, 1917, were ever in fact docketed on the judgment lien docket of the circuit court of your honor's county, said report failing to affirmatively claim or show that the two Ould judgments were ever in fact indexed, or docketed; and it being discovered after the rendition of said alleged erroneous decree that the said Ould judgments were never docketed, as required by the law of Virginia in such cases made and provided, in that the first Ould judgments in said cases were docketed against Moon & Harris, and Moon, Hawley & Co., respectively, not showing alleged individual members of said partnership, which original judgments were afterwards annulled, and the alleged Ould judgments which are sought to be enforced were docketed upon the then current judgment lien docket as against the said Moon & Harris, and said Moon, Hawley & Co., respectively, and without setting out the alleged members of said partnerships, not showing that the said R. P. Harris was a partner in either of said firms, and said second Ould judgments sought in said causes to be enforced, though docketed in the manner afore-said, were never in fact indexed, an affidavit from J. N. Bosang, clerk of your honor's court, which explains the manner of the docketing and indexing of said Ould judgments being herewith filed and marked as 'Exhibit C, ' and asked to be read as a part of this amended petition."

The interest of the petitioners in the subject-matter consists in the fact that the judgments, supra, were established as liens by the decree complained of, and the lands of said petitioners directed to be sold to discharge the same.

The petitioners also "excepted to the report of Commissioner Morton, undertaking to list the said Ould judgments as liens against the property of petitioners, for the reason that the said judgments are neither indexed nor docketed as the law requires."

The plaintiff objected to the filing of the foregoing petition and exhibits therewith, and demurred to and moved to dismiss the same, and to dissolve the temporary injunction theretofore granted.By consent of parties the cause was made a vacation cause, and, subject to certain agreed stipulations, was continued.At a court held in September, 1918, the court allowed the petition to be filed, but proceeded to sustain the demurrer to the same, "whether considered as a bill of review, or a petition to rehear, " and ordered it to be dismissed.In the same decree the court dissolved the injunction theretofore awarded, and directed the commissioners to carry out the decree of sale of November, 1917.From this decree an appeal and supersedeas was allowed by one of the judges of this court.

The appellee makes a motion in this court to dismiss the appeal on the ground that the decree of November 16, 1917, being a final decree, the petition for an appeal presented on April 16, 1919, was not within the time prescribed by the statute.This point is well taken, if it be true that the decree of November 16, 1917, was a final decree.

"It is not always an easy matter to determine whether a particular decree is final or not.Nor are the courts fully in accord as to the true characteristics of such a decree"

—but applying certain criteria, well established by the Virginia precedents, to the decree in question, we entertain n6 doubt that this decree is interlocutory and not final.An interlocutory decree may adjudicate the principles of a cause, as well as a final decree; hence complete evidence of finality is not afforded by the adjudication of such principles.Mr. Minor's definition of a final decree is in these words:

"A final decree is one which disposes of the whole subject, gives all the relief that was contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the decree."4 Minor'sInst. 1066, 1506.(Italics supplied.)

The decree of November, 1917, does not so completely dispose of the whole subject that thenceforward the court would exercise merely ministerial superintendence over the execution of said decree.The court in that decree, with certain reservations, confirms the commissioner's report, determines the order in which the property mentioned in same shall be subjected, and directs that the lands ascertained to be liable shall be sold by designated commissioners, upon the terms prescribed, with instructions to the commissioners to report their proceedings to the court.But the decree does not direct the application of the proceeds of sales of the lands ordered to be sold.It will be necessary for the court at a later period to direct this...