Thacker v. Hubard & Appleby Inc

• Citation: 122 Va. 379,94 S.E. 929
• Court: Supreme Court of Virginia
• Decision Date: 24 January 1918
• Parties: THACKER . v. HUBARD & APPLEBY, Inc.

94 S.E. 929

(122 Va. 379)

THACKER .

v.HUBARD & APPLEBY, Inc.

Supreme Court of Appeals of Virginia.

Jan. 24, 1918.

Error to Circuit Court of City of Norfolk.

Proceeding by motion for judgment for money by Hubard & Appleby, Incorporated, against Thacker. To review a judgment for plaintiff, defendant brings error. Judgment reversed, without prejudice to plaintiff in equity.

Burrow & Spindle and Jas. E. Heath, all of Norfolk, for plaintiff in error.

Jas. G. Martin, of Norfolk, for defendant in error.

BURKS, J. This is a proceeding by motion for a judgment for money, under section 3211 of the Code. The notice alleges that R. L. Portlock had given a deed of trust on certain real estate described in the notice to secure the payment of three negotiable notes particularly described in the notice, and that Portlock had thereafter sold and conveyed the land to the defendant who, as a part of the consideration for the conveyance, had expressly assumed the payment of said notes; that the notes had not been paid; that the real estate had been sold for the default; and that after crediting the notes with the net proceeds of sale there was still a balance due the plaintiff of $1,371, for which amount the plaintiff asked for judgment against the defendant. The notice further states that the deed from Portlock to the defendant contained the express agreement that the defendant would assume the payment of the said three notes, and that, while the defendant had not signed said deed, he had expressly assumed the payment of said notes by the acceptance of said deed, and that he had further assumed the payment of the only one of said notes still unpaid by requesting, through his counsel, and obtaining, an extension of time for the payment thereof.

At the June term of the court to which the notice was returnable, it was found that, in consequence of a defect in the return of service, it could not be docketed, but this was waived by counsel for the defendant, and the notice was docketed by consent. At that time defendant's counsel had not determined whether they would defend the proceeding by motion, or apply for an injunction, and asked for a continuance. The motion for a continuance was resisted by counsel for the plaintiff, but was granted by the court, and the cause continued to the September term. In the order of continuance leave was given to the defendant to demur or plead at any time during the then term of the court. The defendant did not demur or plead during the June term, though the court continued in session for some days after the order wasentered. When the docket was called on the first day of the September term, counsel for the defendant stated in open court that, unless a compromise of the case could be effected between that date and the date set for the trial, they would apply for an injunction to restrain the prosecution of the action at law. When the case was called for trial at the September term, the defendant tendered his demurrer to the notice, a plea of nil debet, and a special plea setting up the defense that the supposed contract was not to be performed within one year and was not in writing, and hence could not be enforced. The plaintiff objected to the reception of the demurrer and pleas on the ground that the time limit prescribed by the order of the June term had expired, and it was now too late to file them. The defendant, however, insisted that he had the right to demur and plead as a matter "of right, notwithstanding the order at the June term, and offered to lay the case over until a later day of the term, or continue it until the next term, if the plaintiff so desired. The plaintiff insisted on an immediate trial and the rejection of defendant's demurrer and pleas, and the court so ordered. This action of the court constitutes the first assignment of error by the plaintiff in error.

A very large discretion is vested in the trial courts in the matter of the time for filing pleadings and otherwise preparing a case for hearing, and when not controlled by statute, as for example under section 3288 of the Code, their action will not be set aside unless plainly erroneous. This discretion is necessary to the orderly conduct of the business of the court, and unless properly exercised would lead to unnecessary delay and confusion. Usually the proper time for a defendant to tender his defense is when the case is called on the docket, if he has not previously done so, and if, as in the instant case, he desires a continuance, he must not only show cause for it, but the court usually requires, as a part of the price for the continuance, that he shall make up the issue, so that there may not be further cause for delay when the case is again called for trial. Of course, if good cause can be shown why the issue cannot or should not then be made up, that too will be continued. But the general rule is to require the issue to be made up before the continuance is granted, and the rule is a wise one. It is not uncommon, however, for the court to grant the continuance, and, in the order granting it, to prescribe a time within which the defendant shall file his pleadings; and this is not objectionable, as it gives counsel additional time within which to prepare the pleadings, and, at the same time, by requiring the issues to be made up in advance, obviates the danger of a continuance when the case is next called for hearing.

In Va. Fire & M. Ins. Co. v. Buck & Newsom, 88 Va. 517, 518, 13 S. E. 973, it is said:

"Issue was joined on the plea of non assumpsit, and the defendant company, in accordance with a practice common in the circuit courts of this state, obtained leave to file special pleas within 60 days. The effect of granting leave to file these pleas in the clerk's office was twofold: It gives the defendant additional time within which to plead, and it gives the plaintiff timely notice of the defense to be set up, and thus prevents surprise and delay at the succeeding term. In these respects the practice is convenient."

But when such time limit has been prescribed, the defendant who has not complied with the order has not "the right to demur or plead as a matter of right, " but must show good cause why he has not complied with the order of the court, and, if he fails to do so, it may exclude his pleadings.

After defendant's demurrer and pleas had been rejected, he then moved the court to dismiss the proceeding because a court of law was without jurisdiction in cases of that kind. In other words, the ground of the motion was because the court had no jurisdiction of the subject-matter. The motion was a proper one, and the court rightly entertained it

"By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought; and this is conferred by the sovereign authority which organizes the court and is to be sought for in the general nature of its powers, or in authority specially conferred." Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931.

If not fixed by the Constitution, the Legislature alone can determine of what subjects the several courts of the state shall have jurisdiction. No consent of parties can confer it, and a judgment outside of the jurisdiction so conferred is simply void. Objection for want of jurisdiction of the subject-matter may be taken by demurrer, or motion, or in any way by which the subject may be brought to the attention of the court, and, if not brought to the attention of the trial court, it may be taken notice of by the appellate court, ex mero motu, for the first time. South & W. R. Co. v. Smith, 104 Va. 314, 51 S. E. 824; Hanger v. Commonwealth, 107 Va. 872, 60 S. E. 67. If the court had no jurisdiction of the subject-matter, then the motion should have been sustained and the proceeding dismissed. As the defendant did not sign the deed in which the payment of the notes was expressly assumed, but simply accepted it, his contract to pay was not a specialty, but a simple contract debt. Taylor v. Forbes, 101 Va. 568, 44 S. E. 888; Willard v. Wood,-164 U. S. 502, 17 Sup. Ct. 176, 41 L. Ed. 531.

The question, therefore, presented for consideration is this: If the defendant, as a part of the consideration for the purchase of the real estate from Portlock, agreed by parol to pay to the plaintiff Portlock's notes to him, secured by a deed of trust on the land sold, can the plaintiff sue the defendant at law on that promise to recover the deficiency claimed in the notice? The objection, of course, is the want of privityof contract between the plaintiff and the defendant. This is a question upon which there is great conflict of authority. Many of the cases are collected in 20 Am. & Eng. Ency. L. (2d Ed.) 990, 991.

The common law did not recognize merely equitable claims or interests, but the general rule was that every action must be brought in the name of the person whose legal right was invaded. When applied to matters of contract, the general rule was that, whether the contract was express or implied, by parol or under seal, or of record, the action must be brought in the name of the party in whom the legal interest was vested, and that this legal interest was vested in the person to whom the promise was made, and consequently that he or his privy was the only person who could sue in a court of law upon such contract. 1 Chitty PI. (5th Am. Ed.) 2-5; 15 Ency. PI. 484, 499, and cases. But some exceptions to this general rule were recognized at an early day, and others have been made since.

"Thus, in contracts not under seal, it has been held, for two centuries or more, that any one for whose benefit the contract was made may sue upon it; that is, if A. promises Z., not under seal, but for valuable consideration, to pay

B. $1,000, B. may in Ins own name maintain an action against A. But where the promise is under the seal of the promisor, the common law never relaxed its requirement that the action should be brought by the promisee alone, or his personal...