Wooding's Ex'x v. Bradley's Ex'r

• Decision Date: 07 December 1881
• Citation: 76 Va. 614
• Parties: WOODING'S EX'X v. BRADLEY'S EX'OR AND ALS.
• Court: Virginia Supreme Court

76 Va. 614

WOODING'S EX'X v. BRADLEY'S EX'OR AND ALS.

Supreme Court of Appeals of Virginia.

December 7, 1881

Appeal from decree of corporation court of Danville?? Opinion states the facts.

E E. Bouldin, for the appellant.

Ould & Carrington and E. Barksdale, Jr., for the appellees??

OPINION

STAPLES J.

Bradley's executor, in June, 1873, filed a creditor's bill making Jane A. G. Wooding, executrix of W. H. Wooding deceased, and others, parties defendant.

An account of the debts of Wooding was ordered to be taken, and the report of the commissioner was made in July, 1874; and in said report the sum of $133.67, as principal and interest was found to be the balance due to Joseph M. Terry.

The report was confirmed in October, 1874, as to every matter except one claim, left open by the court, and commissioners were appointed to sell the lands of the decedents to pay the debts reported.

Subsequently the commissioners were directed to pay the debts reported which was accordingly done. In August, 1876, and January, 1877, Terry was paid the sum reported by the commissioner. In February, 1877, Terry presented a petition, wherein he sets forth that the amount due him, as of 22d November, 1851, was $435.13, instead of $58.19, as of September 25, 1852; and that the error of the commissioner arose from the fact that he allowed as a credit upon the bond held by Terry the sum of $400, which he (Terry) never had received, and which he (Terry) never authorized to be paid to any one in his behalf.

At the March term of 1877 the court took time to consider whether Terry should be allowed to file his petition; but in the following April leave was given and a rule awarded against the executrix to show cause why the prayer of the petition should not be granted.

The executrix answered the rule, and upon the coming in of the answer, the court recommitted the account to the former commissioner, with directions to take testimony.

At the November term, 1877, the court modified its former decree, and directed that $400, with interest from September 25, 1852, in addition to the amount formerly reported, should be paid to Terry out of the assets of Wooding's estate, there being enough in the hands of the commissioner to do so.

Two principal objections are made to the action of the court below. First, that the court had no power or right to entertain the petition of Terry; and, secondly, that if it had, the decree allowing Terry's claim to the $400 and interest was erroneous.

First, therefore, did the court have the power or right to receive the petition of Terry?

It is true that no exception was made by Terry to the commissioner's report between the date of its filing and its confirmation, and none, indeed, until the filing of the petition. But it must at the same time be remembered that the court continued to have the principal cause in hand until long after Terry's petition was filed and its judgment thereon declared.

There is no rule of law or practice which would forbid or prevent a court, so long as it retained a cause under its consideration, from receiving and entertaining an exception to a commissioner's report, even after the same had been confirmed, if it should be clearly shown that the report, if carried out, would be productive of injustice and wrong.

It is, however, unnecessary to consider this point further, because the appellee did not rely upon a mere exception, but he filed his petition for a rehearing, which it was competent for the court to entertain so long as the decree was interlocutory. That no final decree had been rendered at the time the petition was presented, is too clear to admit of discussion. According to the settled rule of the court, a rehearing is a matter resting in the sound discretion of the chancellor, and will be granted where it is manifest that the justice of the case has not been attained.

It only remains to enquire whether the court committed an error in granting the rehearing and in setting...