141 Va. 602 | Va. | 1925
delivered the opinion of the court.
In 1917 the Southern Express Company, that was then doing business in Virginia and other Southern States, had delivered to it, at Richmond, Virginia, on the 27th day of September, 1917, two packages of tax tags, valued at $450.00, consigned to the F. S. RoysterGuano Company, at Norfolk, Virginia. These packages were lost in transit, and the consignee filed claim with the express company before July 1, 1918, for its-
The F. S. Royster Guano Company brought, in the Circuit Court of the city of Norfolk, it's action of trespass on the case for $600.00 damages, for the loss above mentioned, against the Southern Express Company, and matured the same on process returnable on the 1st December rules, 1919, which process was served on W. F. Rhea, Chairman of the Corporation Commission, and by immediately transmitting a copy thereof by mail to said company, pursuant to subsection 3 of section 1294-g of the Code of Virginia, 1904.
The Southern Express Company appeared specially
The Circuit Court of the city of Norfolk, at its May, 1920, term, proceeded to hear and determine the case without the intervention of a jury, and the plaintiff being fully heard, the court entered judgment against the Southern Express Company for the plaintiff for the sum of four hundred and fifty dollars, with interest from the 15th day of May, 1920, till paid. No execution was issued upon this judgment.
At the first July rules, 1922, in the Circuit Court of the city of Norfolk, the plaintiff filed a declaration in debt against the American Railway Express Company upon its judgment against the Southern Express Company, alleging liability upon the defendant by reason of the fact that it had taken over the assets of the Southern Express Company, and that such assets had been distributed to the exclusion and prejudice of its creditors.
The case coming on to be heard by the court, without the intervention of a jury, on the 13th day of April, 1923, judgment was entered for the plaintiff against the defendant for four hundred and sixty-one dollars and forty cents ($461.40), with legal interest on $450.00 from the 15th day of May, 1920, till paid, and its costs. Motion to set aside the judgment was made and overruled, to which the defendant excepted. The case is before this court on exceptions, for error in overruling the defendant’s motion for a new trial, and errors committed in the course of the trial. For convenience the parties
The first error for consideration is the action of the court in striking out the defendant’s plea of the statute of limitations. No execution was issued upon the judgment against the Southern Express Company, and section 6477, Code of Virginia, provides: “On a judgment, execution may be issued within a year and a scire facias or action may be brought within ten years after the date of the judgment * *
The contention of the defendant was that “a scire facias” or action was the same or identical proceedings in law. This was not the correct construction of the statute. The proceeding by scire facias in this State is not a new suit, but a continuation of the old suit. “Its object is to obtain execution of a judgment which has become dormant by the lapse of time, and it is essential that the writ, which serves the double purpose of a writ and a declaration, shall state all the facts necessary to authorize the relief sought. It should follow the judgment to be revived as to the amount, date and parties.” White v. Palmer, 110 Va. 490, 66 S. E. 44.
“At the common law, an action of debt will lie on a judgment as soon as it is recovered, and without regard to the plaintiff’s right to take out execution; for the remedy by execution is cumulative merely, and the statutes giving this remedy do not impair the common law right of action on the judgment as a debt of record.” Black, Judgments, section 958. Hickman v. Macon Co. (C. C.) 42 Fed. 759; Wilson v. Hatfield, 121 Mass. 551; Stewart v. Peterson, 63 Pa. St. 230; Kingsland v. Forrest, 18 Ala. 519, 52 Am. Dec. 232.
The statute of Virginia recognizes the action of debt as at common law, and fixes the limitation at ten years. The plea of the statute of limitations was properly stricken out.
It need scarcely be added that if the judgment sued on be a foreign judgment, or one rendered in a sister State, the question of jurisdiction is always open to inquiry. Black, Judgments, sections 818, 835, 894-915. The eases cited and discussed before the court are of this latter character and are therefore not authority upon the question of jurisdiction before this court.
The Circuit Court of the city of Norfolk, a court of general jurisdiction, having jurisdiction of the subject matter and parties, upon the service of process adjudged by it to be valid and not void upon its face, is conclusive in Virginia upon other courts, and not open to collateral attack. This principle is not merely an arbitrary rule of law established by the courts, but it is
The Southern Express Company had not been denied “due process” of law, and the judgment against it was properly admitted in evidence.
The other assignments of error are based upon the claim of .the defendant that the evidence does not prove that the Southern Express Company was merged and consolidated into the American Railway Express Company, and that the Southern Express Company still maintains its corporate existence, and that such merger was by compulsion of the Director-General of Railroads.
It is uncontroverted that the Southern Express Company turned over its business and property used in its business, along with another express company, for its proportionate share of the stock of the defendant, and ceased to do an express business, nor were any assets left in the State of Virginia to pay the obligations of the Southern Express Company.
The case of American Railway Express Company v. Downing, 132 Va. 139, 111 S. E. 265, in an able and exhaustive opinion by Judge Sims, settled the law in Virginia in reference to the merger of the Southern Express
The principles upon which the cases are based are that the assets of the constituent corporations are a trust fund for payment of their debts, and when the consolidated corporation takes over the assets in exchange for stocks and bonds, there is an implied contract in law to pay such debts out of the assets.
The judgment of the circuit court is plainly right and will be affirmed.
Affirmed.