86 Va. 410 | Va. | 1889
delivered the opinion of the court.
The first error assigned is the overruling of the exception of the appellant to the report of the commissioner, on the ground that there was no legal notice by the commissioner making said report, by publication, of the time and place of stating the accounts directed.
The law and the direction of the decree ordering the account say that the announcement, or publication of the notice, must be before the public for four weeks. In this case the commissioner dated his notice 16th of May. and fixed the day as the 20th of June; but the editor’s certificate is that its first insertion in the Kelson Examiner was in the issue of the 25th of May—which makes six days in May and twenty in June, or only twenty-six days of actual publication. Less than the four weeks required. ' There must be at least twenty-eight days from the first insertion to the day fixed for the taking of the account. Code 1887, sec. 5, says: “Where a statute requires a notice to be given or any other act to be done a certain time before any motion or proceeding, there must be that time exclusive of the day for such motion or proceeding.”- The record shows that, in this case, the commissioner published his notice for three days less than the twenty-eight days, or four weeks, previous to the 20th of June, the day appointed for the proceeding. This was not due notice. Non constat.but that, on the 27th or 28th day, some one interested in or affected by the proceeding might see the notice. The publication in a newspaper is a substitute for personal service of notice, and it must be strictly made; and the commissioner executing the order of the court must comply in the precise manner directed.
The circuit court erred in overruling the first and second exceptions of the report and in confirming the said report. The third exception is based upon the failure of the commissioner to state the account showing the debts of the appellant, Dillard, and of his co-defendant, Larkin, i.n the order of their legal priority, and the real estate upon which they are liens, as directed to be done in the order of reference. The record shows that among the debts reported, is a debt in favor of the plaintiff against Larkin and the appellant, as principal debtor and surety; and the appellant had a right to have not only the amount of the debts reported, but also who was principal -and who was surety, and that the record might show who was primarily liable, so that the surety might have decree over against the principal, or be subrogated to the lien of any debt he paid as surety; and the failure of the commissioner to show-' the liabilities and assets of appellant’s company—defendant Larkin—after he was directed to make these necessary inquiries and statements, was cause sufficient to justify a recommitment of the report: it being error to decreé the sale of land of the surety before inquiry as to whether principal has not land first liable. Erving’s Adm’r v. Ferguson’s Adm’r, 33 Gratt., 564. And it was error to order the sale of appellant’s land without first adjusting and settling rights in dispute- and ascertaining and determining the liens and their incumbrances, their amounts and priorities. Schultz v. Hansbrough, 33 Gratt., 577, and cases cited.
The fourth exception to the report is, “Because the statement in said report of the number of acres of the Amherst land of the appellant is not correct,” and that there is no certainty in the report as to the quantity, the location, and the annual and fee simple value of the Amherst land as justified the decree for its sale. The bill of the plaintiff is wholly silent, and the report of the commissioner describes it as
The fifth exception to the report is upon the ground that it appears upon its face to have been made by one who is a creditor and a party to the suit. As such, though he is a commissioner of the court, he is incompetent to make a report in the cause. Simmons v. Lyles, 27 Gratt., 928. In Bowers’ Adm’r v. Bowers, 29 Gratt., 697, this court decreed that an attorney employed in a cause is not a competent commissioner to take an account ordered in the cause. Ho judge would sit in a cause wherein he was interested or a creditor; and a commissioner of accounts is a quasi judicial character, and if the law does not, in terms, disqualify him to take and report an account in a cause wherein he is a party, the spirit of it does.
Dor the foregoing reasons, we are of opinion that the decree complained of is erroneous, and the judgment of this court is that it be reversed and annulled, and the cause be remanded to the circuit court of Helson county for further proceedings in accordance with the views herein expressed.
Degree reversed.