41 W. Va. 544 | W. Va. | 1895
In a suit in equity in the Circuit Court of Randolph county, brought by George W. Yokum, commissioner of school lands, against Fickey and Thomas, to sell certain lands as forfeited for the benefit of the school fund, Fickey and Thomas filed a petition asking leave to redeem the lands, and paid into court a sum of money to effect such redemption; and a decree was made allowing them to redeem, and ascertaining that Fickey and Thomas had paid
The question is: Does the order releasing the receiver from interest operate to modify the decree first entered, directing the receiver to pay out certain specific sums to certain parties, including one hundred and sixty two dollars and thirty three cents to Fickey and Thomas? If it does, waiving its indefiniteness, then quashing the execution was right, as it had no decree to support it for the amount it called for; but, if it was ineffectual to change the former decree, the action of the court quashing the execution was wrong. The provision of the decree directing the receiver to pay Fickey and Thomas a certain sum was a personal decree, on which execution could issue, and which would be
The order to the receiver to pay, being a final decree, in which its beneficiaries hadan interest, could it be affected in this way without notice? Surely not. That is another reason for its nullity. And, still further, after affirmance of the decree, it was, as originally entered, final and unchangeable, because res judicata, whether that decree was right or wrong. Davis v. Henry, 13 W. Va. 230, point 6. The af-firmance in this case being absolute, I am not prepared to say that it did not operate upon the entire decree and all parties, though Crawford was not summoned on the appeal. Newman v. Mollohan, 10 W. Va. 488, and opinion page 501, stating the harsh principle relating to affirmance. See Ferguson v. Millender, 32 W. Va. 30 (9 S. E. 38) and cases; Renick v. Ludington, 20 W. Va. 511, 537. It was er
But the point is made by counsel that the receiver was no party to the suit in which the decree against him was made, and no notice was given him, and it is void as to him. He is the officer of the court. Must ho have notice before any order can be made requiring him to pay ? Of course, courts should be careful, before decreeing him to pay fixed amounts, to see that they are in his hands. But he is always before the court. The Supreme Court of the United States has held that a receiver is so far a party that he can appeal from a decree ordering him to pay a specific sum as due from him. Hinckley v. Railroad Co., 94 U. S. 469. He is thus a party as to that decree, like a purchaser at a court sale. And, also, that the other side can appeal. Hovey v. McDonald, 109 U. S. 150 (3 Sup. Ct. 136). So How v. Jones, 60 Iowa, 70 (14 N. W. 193); High. Rec. § 819b.
These principles repel the idea that the first decree against the receiver was void. It was valid until reA’ersed, and could not be changed as it was by subsequent order. That order itself was so indefinite, not releasing any sum, not taking away Fickey’s and Thomas’ decree, not prorating the interest, that, if not invalid, it would likely be ineffectual to affect the former decree.
As the first decree was standing as res judicata to support the execution, and the order releasing interest void, when the motion was heard, there was error in sustaining the motion to quash the execution, and the judgment is reversed, and the motion dismissed.