19 W. Va. 265 | W. Va. | 1882
announced the opinion of the Court:
Isaac J. Yanderwarker after a protracted litigation with the B. &. O. R. R. Co. commencing in October, 1853, obtained a decree in the circuit court of Marion county against that company on the 3d day of February, 1864, for the sum of $9,637.24 with interest from the 23d day of June, 1854. Certain creditors of Yanderwarker having in that suit established claims against him to a large amount, it was provided in the decree, that $4,314.24 of that sum with interest from the 23d day of June, 1854, should he paid by the company to the receiver of the court and be disbursed by the receiver to the said creditors of Yanderwarker. The decree also provided, that the company should pay to Yanderwarker the sum of $60.27 costs for the taking of a certain account by a commissioner of the court. This cause was by the B. & O. R. R. Co. taken to the Supreme Court of Appeals, and remained on the docket from the first Monday of September, 1864, to the 9th day of June, 1880, when it was dismissed upon a rule awarded at the preceding January term of the Court for a failure upon the part of the company to mature the cause for hearing. When and how this cause reached this Court does not appear on the records. It could have been brought here by direction of the Court or by a judge thereof in vacation ; but in either event it would not have been necessary under the law, that the records should show the fact, as the placing of the cause upon the docket of the Court either by the direction of a single judge in vacation or by the Court in term-time would have at once made it a cause pending in court with all the consequences of that condition of the cause as fully, as if an endorsement had been made upon the record itself by a single judge or an entry by the clerk, had it been directed by the Court in term-time, as is generally done, where an appeal or appeal with supersedeas or writ of error is allowed by a single judge or in term. The first appearance of the cause in this Court was an order of publication issuing from the clerk’s office of the
After this appeal was dismissed, the receiver of the circuit court of Marion county, James O. Watson, had a writ of ft. fa. issued from the clerk’s office of that court for the said sum of $4,314.24 with interest from the 23d day of June, 1854, the sum directed to be paid to him by the decree, and $60.27, the amount directed by the decree to be paid to Vanderwarker. The railroad company on the 14th day of February, 1881, moved to quash this writ; but notice being waived by the ap-pellee, it does not appear upon what ground the motion was made. The court overruled the motion to quash and gave costs against the company. From this judgment the company obtained a writ of error and supersedeas to this Court.
The evidence upon said motion consisted on the part of the plaintiff in error of the writ of ft. fa., the decree in the chancery cause, the petition for appeal in that cause, and the admission of the defendant in error, that no writ of ft. fa. had issued on said decree until the 30th of July, 1880. On the part of the defendant in error the evidence consisted of the order of publication issued’from the clerk’s office of the Supreme Court of Appeals — the several orders of continuance of the chancery cause in that court — the rule and order of the court upon the rule dismissing the appeal — extracts from the chancery cause showing that Despard was of counsel for the plaintiffs in error in that suit — a bond signed and sealed by B. Despard, bearing date the 8th day of August, 1864, with
The first error assigned is, that more than ten years having elapsed from the time of the decree to the issuing of the execution, the statute of limitations applied, and no execution could issue on said decree. The petition, upon which the chancery case was docketed in the Supreme Court of Appeals, only prayed for an appeal; and although there is no order either by the judge of the court or of the court, and no process was served on the parties, showing what was the character of the writ awarded in the matter, the court is asked to infer, that no more than an appeal was allowed, and that therefore no impediment existed to the issuing of an execution at any time, and the party was in nowise impeded in his rights upon execution, and having voluntarily slumbered upon his rights for ten years he can not now demand this money.
It seems to me, that instead of there being an inference to be drawn in this case, that only an appeal was allowed, the inference is the reverse. It is true, the petition only asks for an appeal; but I do not understand, that that fact would
But it is not necessary to rest that question upon a question of fact; for however the factmay have been, the plaintiff in error is estopped from denying, that a writ of superse-deas was awarded in that case by the recital of that fact in the bond executed by its attorney, the benefit of which it received and enjoyed. Hoke v. Hoke, 3 W. Va. 561; Bates v. Merrick, 2 Hun 568; Levi v. Dorn, 28 How. (Prac.) 217; Anderson v. Barry, 2 J. J. Marsh. 280; Hill v. Burk, 62 N. Y.; Montieth v. Commonwealth, 15 Gratt. 172; Franklin’s adm’r v. Depriest, 13 Gratt. 257; Wayman v. Taylor, 1 Dana 527; Daniels v. Tearney, 12 Otto 415; Adams v. Robinson, 1 Pick. 461; Story on Agency § 24, note, 8th ed.; Foster v. Blount, 1 Overton 342; Scaggs v. Balto. & Wash. R. R. Co., 10 Md. 281.
The law does not require, that the party obtaining an appeal or supersedeas shall himself execute a bond, with security ; but that he or some one for him shall do so. The bond in this case was executed by Despard alone; and doubtless if the sufficiency of the bond had been objected to at the time and by the party interested, the objection would have been sustained. By the Code of New York § 341 it was provided, that “an undertaking upon an appeal shall be of no effect, unless it be accompanied by the affidavit of the sureties, that they are each worth double the sum specified therein.” In the case of Hill v. Burke, supra it was held, that the sureties could not .escape liability upon the undertaking, because
It seems to me plain, that the bond in this case having been given for the benefit of the appellants, a nd they having enjoyed the benefit of it, they are estopped from denying,
It was also assigned as error, that the execution did not conform to the provisions of chapter 140 section 3 of the Code of 1868, which provides: “ Where an execution issues on a judgment for the benefit in whole or in part of any person other than the plaintiff, if the fact appear by the record, the clerk shall in the execution or in an endorsement thereon state the extent of the interest therein of such person, and he (either in his own name or that of the plaintiff) may as a party injured prosecute a suit or motion against the officer.” I do not think, even if this direction was absolute and not directory, that it would be a matter, of which the appellant could complain. But I understand the provision to apply to those cases, where a judgment at law is obtained in the name of one for the benefit of another, as in the case of an action in the name of the assignor for the benefit of an as-signee, but not to decrees in equity, where the equitable owner is recognized as the party, in whom the right is, and not as the mere legal owner for the benefit of the equitable owner, as is the case at law. In a court of chancery a receiver is authorized to collect by execution and to disburse to innumerable creditors the money collected. It certainly could not have been contemplated by the statute, that such an execution should issue, as would enable each of these creditors to maintain an action against the officer.
I do not think the court below erred in refusing to quash the execution on that ground.
It is also assigned (as error, that the, amount decreed to be paid to the receiver and the sura of $60.27 decreed to be paid to Vanderwarker are included in ¡¡the one execution. There is no sort of privity between these parties, and the sums are as separate and distinct, as if they had been decreed in separate suits and upon different causes of action. It is obvious therefore, that the court below erred in refusing to quash the execution on that ground.
I am of opinion therefore to reverse the judgment of the court below with costs to the appellant but without preju
Judgment Reversed.