Scott et al. v. Ludington et at.

• Citation: 14 W.Va. 387
• Parties: Scott et al. v. Ludington et at.
• Decision Date: 14 December 1878
• Court: Supreme Court of West Virginia

14 W.Va. 387

Scott et al.

v.Ludington et at.

Supreme Court of Appeals of West Virginia.

Decided December 14, 1878.

l. Where the decree does not state that the order of publication as to the absent defendants was duly executed, or what is tantamount thereto; and the record does not disclose the fact, that as to such absent defendants the order of publication was executed, and such absent defendants are material parties to the bill, and have not appeared in the cause, such decree will be reversed for that reason.

2. But if there was no objection made in the court below as to the manner, in which the order of publication was issued, or executed, so as to bring the matter before the inferior court and have the question as to the sufficiency of the order of publication passed upon by that court, and the decree recites that the order of publication as to the abseant defendants was "duly executed," the objection that it was not so executed will not be entertained by the Appellate Court.

3. If an assignment purports to transfer the whole interest of the assignor, and there is nothing in the pleadings and proofs to induce the belief, that it did not really do so, the assignor is not a necessary party to the suit.

4. Where a cause has been referred to a commissioner to audit judgment liens against a debtor, and after the original report had been filed, and at the request of the plaintiffs' attorney, the commissioner made and tiled a supplemental report auditing other judgments, which had been recovered since the original report was filed, and all the necessary parties were brought before the court before the hearing on such reports, and opportunity being had, no exceptions were filed to either the original or supplemental report, it was not error to hear the cause on such supplemental as well as original report.

Where a creditor filed his bill against the judgment debtor and other judgment lienors, to enforce his judgment lien, and the debtor filed his answer, claiming that the consideration of the bond, on which plaintiff's judgment was recovered, had in part failed, and claiming a credit on such judgment to the extent of such failure, and also filed an amended answer setting up such failure of consideration more specifically, arid thereupon the plaintiff filed an amended bill bringing all the parties interested in such failure of consideration, if any, before the court, and setting up such a state of facts as would, if true, show that there ought not to be any credit on such judgment; and the plaintiff replied generally to the answer, and the defendant debtor did not answer the amended bill, nor were the facts therein set up controverted, and no proof was taken as to such alleged failure of consideration, the court did not under such circumstances err in refusing to delay the hearing of the cause and decreeing that plaintiff's judgment should be paid in full.

6. It is error to decree a sale of land subject to prior liens.

7. Where there are a number of judgment liens against the lands of the debtor, it would be error to decree that the land should be sold to pay the lien of the plaintiff only; the decree should provide for the payment of all the liens audited against the land.

8. As it is the duty of the court before it decrees the sale of land to definitely fix the amounts and priorities of the liens, it is error to provide that any of the parties may apply for further relief, if it should appear that a credit allowed to a judgment was improper.

Appeal from a decree of the circuit court of Greenbrier county, rendered on the 22d day of November, 1875, in a cause in said court then pending wherein John G. Scotland others were plaintiffs, and Francis H. Ludington and others were defendants, allowed on the petition of said Ludington.

Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the decree appealed from.

Johnson, Judge, furnishes the following statement of the case:

In August 1874, the plaintiff, who had recovered a judg- merit against the defendant Ludington, filed his bill against the said defendant and a number of others. The other defendants were also judgment lienors.

The defendant Ludington answered the bill, and in his answer claimed that W-A. Scott, in whcse name the said judgment was recovered for the use of the plaintiff in this | suit, and to whom he had executed the bond, upon which said judgment wras recovered, wTas the owner of an interest in a steam saw-mill, and that the defendant bought that interest and gave the said bond therefor, and that the consideration therefor had failed, because Scott had not paid the whole purchase money for the interest, and that the original owners were about to sell the said interest for the purchase money, and that Scott was insolvent. The said defendant also filed an amended answ7er setting up said facts more specifically.

The plaintiff filed an amended bill, in which he made the original owners of the interest in the steam saw-mill defendants, and set up such a state of facts, as would, if true, show, that the defendant Ludington had no right to have any credit on the said judgment on account of any failure of consideration in whole or in part. There was a general replication to theorignal and amencded answer; and Ludington did not answer the amended bill, nor have the facts therein set forth controverted.

The cause was referred to a commissioner, who returned his report, before the amended bill was filed. The amended bill showed that since the original bill was filed other parties had recovered judgments against said Ludington, and made them also defendants to the suit. At the request of the attorney for the plaintiff the commissioner made a supplemental report, in which he audited the said pendente lite judgments. It. does not appear, whether notice was given of the auditing of said judgments, nor does it appear by any order made in the cause, that the court required it to be done. There was no exception to cither the original or the supplemental report by any one. Jesse Jones, in whose name one of the judgments, audited by the commissioner, was recovered, was not made a party to the suit. There is nothing in the pleadings or proof to lead to the belief, that he had not disposed of his entire interest in the claim, on which the judgment was recovered.

The decree recites, that as to the absent defendants the order of publication was "duly executed;" the record purports to show a copy of the order of publication. It appears, that the affidavit purported to be made was not made until after the order was issued, but before the same was executed; and the order required the absent defendants to "appear here within one month after the date of the first publication of this order, and do what is necessary to protect their interests in this suit." There is nothing in the record to show that the order filed is a part thereof; no question was made as to the offering of the order or its execution in the court below; and no order refers to it, except the decree above referred to.

Some of the defendants filed answers and prayed, that their judgments might be paid by a sale of the lands charged; and others filed no answers. The bill alleged? that the several judgments were liens on the land. The court by its decree, entered on the 22d day of November, 1875, confirmed the original and supplemental reports of the commissioner, and directed the land to be sold within thirty days to pay the judgments, unless they were paid, &c. The commissioner entered a certain creelit of $37.21, and interest and costs, amount of a judgment recovered against William H. Scott, and the decree "gave leave to apply for further relief, should it be made to appear that the judgment should not be reduced by the judgment against Wm. H. Scott for $37.21 with interest and costs referred to in said reports."

From said decree the defendant F. H. Ludington appealed.

A. 0. Snyder, for appellant, cited the following authorities:

Code W. Va., ch. 124, §11; Acts 1872-3, p. 491; 33 Iowa 157; 4 Leigh 474; 4 Pet. 172; 6 W. Va. 168; Code W. Va., ch. 126, §6; 6 W. Va. 11; 20 Gratt, 658; 6 Gratt. 40; Gifm. 130; 2 Rob. (old) Prac. 402; 6 Leigh 196; 10 Leigh 113; 14 How. 17, and cases cited on page 37; 6 Munf. 110; 1 Gratt, 396; 9 W. Va. 206; 26 Barb. 535; 38 Ala. 329.

John W. Harris, for appellee, cited the following authorities:

10 Gratt. 284; 1 Wash. 145; 3 Munf. 94; 9 Gratt. 131; 18 Gratt. 54; 26 Gratt. 511; 18 Wall. 151; 21 Gratt, 264; 4 W. Va. 190; 10 Gratt. 164; 25 Gratt. 104; 20 Gratt. 658; 22 Gratt, 233; 15 Gratt. 84; Story Eq. PI. $99, n. 1, et seq; 2 Bl. 448; 4 McL. C. C. 51; Story Eq. PI. $101; 22 Graft. 229; 4 Gratt. 207; 3 W. Va. 423; 2 Gratt. 70; Code of 1849 (Va.) ch. 186, §9; Code of W. Va., ch. 140, §2; Id. ch. 139, §8; 6 W. Va. 42; 8 W.Va. 210.

Johnson, Judge, delivered the opinion of the Court:

The first objection to the decree is, that the cause was not properly matured for hearing, because the order of publication as to the absent defendants was not duly executed; that no affidavit was made before it was issued. In Gibson v. White & Co., 3 Munf. 94, a decree was held erroneous, because it did not appear from the record, nor was it stated in either of the decrees in tie cause, that the absent defendant was proceeded against under the statute as an absentee. Where there is a joint decree against two parties, one of whom is an absent defendant and proceeded against by order of publication, and could not therefore appeal, and the decree is erroneous, it will be reversed as to both. Lyman v. Thompson, 11 W. Va. 427.

In Hunter v. Spotswood, et al., 1 Wash. 145, it did not appear that Campbell, one of the defendants who was an absentee, had been proceeded against by publication. The objection was made in the Appellate Court by the other "defendants; and it was argued that no person could take advantage of the omission but Campbell himself,...