13 Gratt. 235 | Va. | 1856
This case was first submitted to the court on a preliminary question, the decision of which in favor of the appellants, it was supposed, would render it unnecessary to consider the case upon the merits. That question was raised by the third assignment of error, which is, that “ it was irregular to hear the cause upon the commissioner’s report until thirty days after the same had been returned to the court.” Code, p. 659, ch. 175, § 9. In Gray v. Dickenson's adm'rs, 4 Gratt. 87, referred to in the petition, this court, on a similar ground, reversed with costs the decree of the court below, without considering the other errors assigned. We would have to take the same course in this case, if it were like that in all respects: but it is not. In that case the decree appealed from was final. The defendant had not appeared and ahtswered; and there was nothing in the record from which it could be inferred that the cause
The court having announced that, whatever might be its opinion upon the preliminary question submitted,' it would be necessary to consider the question, whether the decree be correct in principle; the case was then fully submitted for its decision.
In considering the case upon its merits, the first question which presents itself is, Whether the appellees are entitled to any relief in the case as it now stands ? In other words, Whether a court of equity has any jurisdiction of the case?
The appellees have obtained no judgments upon their claims. They are creditors at large of Joseph IT. Armstrong. They do not come into court under chap. 179, § 2, p. 677 of the Code, “to avoid a gift, conveyance, assignment or transfer of, or charge upon, the estate” of their debtor. They do not claim to be beneficiaries under, or privies to, the trust created for their debtor by the will of his father. Nor do they set up any claim to a lien on the trust subject under any contract with the trustee, or even with their debtor. They claim only as general creditors of Joseph N. Armstrong, and upon the ground that their claims are for necessaries furnished for the use, maintenance and support of the said Armstrong, his wife and family; and that they are therefore, as they insist, “ entitled to be paid out of the property given by the
It would be premature, and is not intended to intimate any opinion in this case, whether, and to what extent, the trust subject or its profits may ultimately be made liable to the claims of the appellees; the court being of opinion, that whether so liable or not, and to whatever extent liable, they can have no right to come into equity to enforce any such liability until they shall first have obtained judgments at law. And then, if there be a liability which cannot be enforced at law, they may come into equity to enforce it. Upon the question of liability, whenever it may properly arise, the cases cited by the counsel, in addition to that of Markham v. Guerrant & Watkins, may have an important bearing. Those cases are Scott v. Gibbon, 5 Munf. 86; Scott v. Loraine, 6 Munf. 117; Galt v. Carter, Id. 245; Rankin v. Bradford, 1 Leigh 163; Roanes v. Archer, 4 Leigh 550; Butler v. McCann, Id. 631; Nichell v. Handly, 10 Gratt. 336; Johnston v. Zane's trustees, 11 Id. 552. See also Hughes v. Pledge, 1 Leigh 443; Wallace & wife v. Dold's ex'ors, 3 Id. 258; Stinson, ex'or v. Day A wife, 1 Rob. R. 435; Perkins, trustee v. Dickinson, 3 Gratt. 335; which may have some bearing on the question.
That the bill, not showing on its face proper matter for the jurisdiction of the court, may be dismissed for want of jurisdiction, notwithstanding no exception on that ground was taken in the court below, is shown by the case of Hudson v. Kline, 9 Gratt. 379.
The court is therefore of opinion that both the decree of the 25th day of April 1853 and the decree of
The other judges concurred in the opinion of Moncure, J.
Decree reversed.