Terry v. Dickinson
| Decision Date | 21 April 1881 |
| Citation | 75 Va. 475 |
| Parties | TERRY, ASSIGNEE v. DICKINSON AND ALS. |
| Court | Virginia Supreme Court |
1. Where process in an action of debt was served upon a defendant whilst he was in the military service of the Confederate States, and there is an office judgment confirmed whilst he is in the service, the judgment is a valid judgment and cannot be questioned in another suit.
2. The judgment is not void though no declaration was filed in the cause, and can only be avoided by the proper proceedings taken in due season in the court which rendered the judgment.
3. If upon proceedings in the county court which rendered the judgment to set it aside, that court sustains the motion, and upon writ of error to the circuit court the judgment of the county court is reversed, and the motion dismissed, and there is no appeal, the judgment of the circuit court is conclusive in favor of the original judgment upon all other courts.
4. A bill to set aside a judgment on the ground of usury, simply says the debt was usurious, without stating the usurious interest taken; the defendant denies the usury and the charge of usury is not sustained by competent evidence; the court will not, after long delay, set aside the judgment and grant a new trial.
This was a suit in equity in the circuit court of Franklin county brought in June, 1875, by Joseph M. Terry, assignee in bankruptcy of Thomas C. Callaway, to set aside a judgment which had been rendered in the county court of Franklin in 1862, in favor of Randolph Dickinson against James M. H Leftwich and the said Callaway, on a bond for $1,117.50, executed to the said Dickinson by said Leftwich with Callaway as his surety, and for relief against the debt on the ground of usury.
The grounds stated for setting aside the judgment was that Callaway, at the time of the service of the writ upon him, was in the military service of the Confederate States, and was at home on leave only for a few days, and was not liable to be sued; that neither a declaration or the bond was filed, but the clerk of the court endorsed the common order on the writ, and the judgment was entered by default after Callaway had returned to the army. The bill charged that the bond was given for a usurious loan of money, but does not state the amount of the usury, or in what it consisted; and disclaiming any call for a discovery from the defendant Dickinson, he asks that an issue may be directed to enquire whether or not the bond aforesaid was executed for a usurious consideration. The prayer of the bill is that the judgment may be set aside, and for general relief.
Dickinson answered the bill. He denied that Callaway's being in the military service exempted him from suit, and he insisted that the judgment was a valid judgment by a court of competent jurisdiction, which could not be questioned in a collateral proceeding. And he relied moreover upon the fact that in 1874 the plaintiff, as assignee of Callaway, had moved the county court to set aside the judgment; which motion had been sustained by the county court; but upon a supersedeas to the circuit court, that court had reversed the judgment of the county court. And he denied that he had ever loaned to Leftwich any money at a higher rate of interest than that allowed by law.
The plaintiff introduced Callaway and Leftwich as witnesses. As to the usury, Callaway only says, he advised Mr. Leftwich at the time not to give the bond because Randolph Dickinson was charging him too much interest.
Leftwich said he was the principal in the bond, and that more than six per cent. was discounted by Dickinson from the bond.
The cause came on to be heard on the 16th of April, 1877, when the court dismissed the bill with costs. And thereupon Terry applied to a judge of this court for an appeal and supersedeas; which was awarded.
Wickham & Page, T. A. Wickham and E. Barksdale, Jr., for the appellant.
J. Alfred Jones and Wood Bouldin, Jr., for the appellee.
This case is governed in its main points by the principles...
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Ruckdeschall v. Seibel
...any reason for having failed to defend himself at law." See, to same effect, Rankin v. Rankin, 1 Grat. (42 Va.) 151, and Terry v. Dickinson, 75 Va. 475. But for a contrary holding in Virginia see Hope v. Smith, 10 Grat. (51 Va.) 221. It has been expressly held in some decisions in other sta......
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Dickinson v. Huntington
... ... 343, 11 L.Ed. 283; ... Hickman v. Ft. Scott, 141 U.S. 415, 418, 12 Sup.Ct ... 9, 35 L.Ed. 775; Last Chance Mining Co. v. Tyler, ... 157 U.S. 684, 691, 15 Sup.Ct. 733, 39 L.Ed. 859; Kingman ... v. Western Manufacturing Co., 170 U.S. 675, 680, 18 ... Sup.Ct. 786, 42 L.Ed. 1192; Terry, Assignee, v. Dickinson ... et al., 75 Va. 475; Neale et al. v. Utz et al., ... 75 Va. 480, 488; Freeman on Judgments, Secs. 135, 153, 330, ... 331, 487 ... The ... fourth assignment of error presents for the consideration of ... the court the question of whether or not the entire ... ...
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Logan w. Ballard.
...is spoken by the words of the section. The bill is to "compel him to discover under oath." I notice that Judge Staples, in Terry.y. Dickinson, 75 Va. 475, in considering a bill, points out as a defect that "so far from calling for a discovery from the appellee, it avers that the appellant d......