Williams' Adm'r v. Representative

• Decision Date: 19 November 1896
• Citation: 25 S.E. 1013,93 Va. 690
• Parties: WILLIAMS' ADM'R et al. v. CLARK'S REPRESENTATIVE et al.
• Court: Virginia Supreme Court

25 S.E. 1013

93 Va. 690

WILLIAMS' ADM'R et al.

v.CLARK'S REPRESENTATIVE et al.

Supreme Court of Appeals of Virginia.

Nov. 19, 1896.

Creditors' Soit—Appeal by Debtor—Accounting—Return OF Evidence by Commissioner.

1. in a creditors' suit, though the claims are several and distinct, the debtor may appeal as to all the claims allowed if they aggregate $500, though the claims of some of the creditors are less than that amount.

2. Though the decree under which a commissioner acts in taking accounts does not direct return with the report of the evidence on which it is founded, and though he has filed his report without the evidence, he may thereafter, on the request of one of the parties, return the evidence before the case is heard; the parties not having been notified when his report would be filed.

3. Where the commissioner to whom the taking of accounts has been referred has lost part of the evidence on which his report is founded, 'the case should be recommitted to him.

Appeal from circuit court, Frederick county; Thomas W. Harrison, Judge.

Suit by Clark's representative and others against Williams' administrator and others. From the decrees, defendants appeal. Reversed.

R. T. Barton, J. J. Williams, and M. Mc-Cormick, for appellants.

A. R. Pendleton, W. L. Clark, R. E. Byrd, and C. S. W. Barnes, for appellees.

BUCHANAN, J. The first question to be disposed of upon this appeal is whether this court has jurisdiction to review the decrees complained of as to the appellees, whose debts are each less than $500. A large number of debts were reported against the estates of D. W. Barton and of Phillip Williams, of which the appellants are, respectively, the personal representatives. Many of them were excepted to by the appellants. Of those decreed to be paid, some were over and others under $500. The appellees, whose debts are each less than $500, insist that as to them the appeal should be dismissed by this court, because the amount involved is less than $500. if this was a question of first impression in this court, I would strongly incline to the opinion that their motion to dismiss should be sustained. in an ordinary creditors' suit, where the claims of the creditors are several and distinct, founded upon different contracts, it isclear that no creditor has the right of appeal unless his claim amounts to $500. if the matter in dispute as to the creditor be separate and distinct, it would seem to be separate and distinct also as to his adversary, the debtor; and there does not seem to be any good reason why he should be allowed to appeal as to that creditor, unless the amount in controversy between them amounted to $500. Schwed v. Smith, 106 U. S. 188, 1 Sup. Ct. 221. But this question arose and was decided in the case of Railroad Co. v. Colfelt, reported in 27 Grat. 777; and the court held that the aggregate amount of the debts decreed against the debtor was the amount which he had in controversy, and that he had the right of appeal as to all the creditors, although the claims of some of them were less than $500. 4 Minor, Inst. (3d Ed.) 1062. See Craig v. Williams, 90 Va., at page 502, 18 S. E. 899. The motion to dismiss must be overruled.

The commissioner who took the accounts in the case did not, when he returned his report, file with it the evidence upon which it was based. This was not required by the decree directing him to take the accounts, nor was he requested by any party to return the...