Southern Ry. Co v. Glenn's Adm'r

• Decision Date: 10 March 1904
• Citation: 46 S.E. 776,102 Va. 529
• Court: Virginia Supreme Court
• Parties: SOUTHERN RY. CO. v. GLENN'S ADM'R. GLENN'S ADM'R. v. SOUTHERN RY. CO.

46 S.E. 776

102 Va. 529

SOUTHERN RY. CO.

v.GLENN'S ADM'R.

GLENN'S ADM'R.

v.SOUTHERN RY. CO.

Supreme Court of Appeals of Virginia.

March 10, 1904.

TRUSTEE—COMPENSATION — ILLEGAL ALLOWANCE—INTEREST—APPEAL—PARTIES-STATUTE—MANDATE—MISNOMER.

1. Where a mandate of the Supreme Court of Appeals provides that the directions to the lower court contained therein shall be so carried out as not to conflict with the written opinion of the court, and, through inadvertence, names the person affected thereby as W. W. Glenn, as appears from a reading of the written opinion, in which the correct name of the person affected is shown to be John Glenn, the action of the lower court in making the mandate operative against John Glenn is not an amendment but a construction, of the mandate.

2. Where a recital in a mandate of the Supreme Court of Appeals of the name of a per son affected thereby was unnecessary, an inadvertent misnomer therein of such person will not vitiate the mandate as to the person intended to be named—the correct name appearing in the written opinion in the cause—but the name will be treated as surplusage.

3. Under Code 1887, § 3454, declaring that any person who is a party to any case in chancery wherein there is a decree or order adjudicating the principles of the cause, who thinks himself aggrieved thereby, may present a petition for an appeal from such decree or order, an appellant can only be one who is a party to the suit in the court below, and presents a petition for an appeal from such decree.

4. Where parties stand on distinct and unconnected grounds, their rights being separate and not equally affected by the same decree, the appeal of one on behalf of others will not bring up for adjudication the rights or claims of any but the one appellant,

5. Where a trustee, under a reasonable belief that his right to extra compensation which he retained out of the receipts would never be an after-subject of controversy, continued in the faithful discharge of his duties for many years, and until his death, when appeals from the decrees of the court allowing the extra compensation resulted in requiring the amount to be returned to the trust on the admission of another party into the case as assignee of claims represented by counsel, who had, along with the court and the commissioner, assured the trustee that the extra compensation was justly his, interest will not be required to be paid thereon from the estate of the deceased trustee.

Buchanan and Cardwell, JJ., dissenting.

Appeal from Circuit Court, Henrico County.

Proceedings between the Southern Railway Company and John Glenn's administrator. From a decree permitting other creditors than one successfully appealing to participate in the benefit of the decision, the administrator appeals. Reversed. From a decree denying interest on extra compensation illegally retained by the administrator's decedent, the railway company appeals. Affirmed.

Munford, Hunton, Williams & Anderson, for railway company.

McGuie & Riely, Chas. U. Williams, Chas. Biddle, and R. E. L. Marshall, for administrator.

HARRISON, J. These two appeals are from decrees in the same cause, and have been heard together here. They are the sequel to the cause of Southern Railway Company v. Glenn's Administrator, etc., decided by this court in June, 1900, 98 Va. 309, 36 S. E. 395.

For present purposes the facts are sufficiently stated in the opinion of this court on the former appeal, and therefore need not be repeated. It was there decided that certain commissions allowed John Glenn, trustee, were in excess of his legal right, and for that error the decree complained of was reversed, and the cause remanded to the circuit court, with directions to disallow such additional compensation in settling the accounts of the trustee, as to the appellants in that cause.

In the mandate of this court on the former appeal, the name of the trustee was inadvertently and erroneously recited as W. W. Glenn, instead of John Glenn. It is contended that this error renders the mandate void as against the estate of John Glenn, trustee; that for the circuit court to make the mandate operative against the estate of the trustee, John Glenn, would be for that court to amend the mandate of this court, which it has no power to do.

It is not competent for the circuit court to amend or correct the mandate of this court. We are ourselves powerless to amend or correct our own mandate after the term at which it was rendered has passed, and the time for a rehearing has expired. The question involved, however, is not the right of the court to amend, but its power to construe the mandate and declare its meaning. From a casual reading of the mandate, it is manifest that the recital of the name of the trustee was wholly unnecessary. The presence of the name of W. W. Glenn in the mandate takes nothing from its force. The order Would have been complete and effective without it. The |name W. W. Glenn may therefore be regarded as surplusage which does not vitiate that which is otherwise good. Broom's Legal Maxims (7th Ed.) p. 626; Laverty v. Moore, 33 N. Y. 663: Campbell v. Ayres. 6 Iowa, 339. The mandate provides that the directions to the lower court contained therein shall be so carried out as not to conflict with the written opinion of this court. This practically makes the opinion a part of the mandate, and, when the opinion is looked to, the meaning of the mandate is free from all doubt and difficulty. It there clearly appears that John Glenn was the trustee who had claimed and received the extra compensation, and the only trustee before the court when the additional compensation was allowed. The mandate and opinion, read together, further clearly show that it was the extra commissions allowed John Glenn, trustee, that were disallowed as to the claim of the appellants. Under these circumstances, it was not error in the circuit court to treat the misnomer as a mere clerical error, not affecting the substance of the mandate, which was clear and specific in its directions with respect to the disallowance of the extra commissions as to the appellants.

The administrator of John Glenn, late trustee, further assigns as error the action of the circuit court in holding that the term "appellants, " as used in the opinion and mandate of this court on the former appeal, embraced not only the Southern Railway Company, but all those creditors in whose behalf it claimed to sue. It is contended by counsel for the creditors that the expression "appellants in this cause" was intended to embrace, and did embrace, all of the creditors of the National Express & Transportation Company enumerated in the decree dated April 8, 1895, except the personal representative of W. W. Glenn, deceased, the Philadelphia, Wilmington & Baltimore Rail road Company, and the First National Bank of Charleston; it being insisted that all of said creditors were appellants on the former appeal, and entitled to participate in the benefits of the decision then made.

If this court had intended to order a general accounting for the benefit of all the creditors mentioned, its decree should have directed that the estate of the late trustee be required to account for all the extra compensation he had received, and return the same to the trust fund for the benefit of the creditors generally. This was not done. On the contrary, the opinion and mandate on the former appeal expressly limit the benefits of the decree then made to the appellants in that cause. Therefore the question presented for our present consideration is, who were the appellants before this court on the former appeal?

The petition presented on the former appeal, which alone determines who were appellants, is in the name of the Southern Railway Company, suing for itself and in behalf of all other creditors of the defendant company. At the conclusion of the petition, immediately following the usual prayer for an appeal, is this statement: "The petitioners as above mentioned (except John M. Glenn, personal representative of W. W. Glenn, deceased, the Philadelphia, Wilmington & Baltimore Railroad Company, and the First National Bank of Charleston), being all the creditors enumerated in the last decree of dividends, to wit, that of April, 1885, by the Southern Railway Company, suing for itself and in their behalf."

The doctrine of parties by representation, and other rules of equity practice with respect to parties, are relied on and have been much discussed by counsel. These rules have, however, no application In determining who are appellants in a cause pending before this court. The benefit of appeal is a purely statutory right. When parties come to this court to have reviewed the action of a lower court, their only warrant for doing so is the statute, and its terms must be strictly complied with. Section 3454 of the Code of 1887 declares that any person who is a party to any case in chancery wherein there is a decree or order adjudicating the principles of the cause, who thinks himself aggrieved thereby, may present a petition for an appeal from such decree or order. The person referred to in this statute has been decided to be such person as was a party to the suit in the court below, and who was aggrieved by the decree therein rendered; and, to make him a proper party to an appeal, these two circumstances must concur. Barton's Chancery Practice, p. 167, § 42; Supervisors of Culpeper v. Gorrell, etc., 20 Grat. 484-520.

A person desiring an appeal must present his petition therefor, accompanied by a copy of the record, to this court in session, or to one of the judges thereof. Whether or notan appeal be taken, rests entirely with the party affected by the decree of the lower court No person can be forced by another party to the same suit to appeal against his will; hence the petition must show, by name, the parties who claim to be aggrieved by the decree complained of, and who desire to have such decree reviewed. Where there...