126 Va. 526 | Va. | 1920
after making the foregoing statement, delivered the following opinion of the court:
1. Was the decree of November term, 1915, which appears in the statement preceding this opinion, an interlocutory or a final decree?
The above statements of the law are sustained by numerous Virginia decisions which are cited by the learned author to support them. See also to same effect, Johnson v. Merritt, 125 Va. 162, 99 S. E. 785.
It is well settled that if a rehearing of the final decree of November term, 1915, could have been properly granted upon such petitions, it must have been on regarding the petitions as bills of review, since in a suit of the character of that before us a final decree can be reheard after the terms at which it is entered only upon motion under section 3451 of the Code, where the decree as in this case was on a bill taken for confessed (which procedure was not followed), or upon a bill of review. Our practice is rightly liberal as touching mere forms of pleading, however, and we have no difficulty in regarding the petitions as bills of review.
3. Are the errors alleged in the bill of review of the appellee guardian as grounds for the rehearing of said decree errors in law apparent on the face of such decree— that is, are they errors in law that appear upon the face of the proceedings when the whole record is read along with such decree?
4. But it is argued for appellees, under the authority of Nelson’s Adm’r v. Kownslar’s Ex’r, etc., 79 Va. 468; Wooding v. Bradley, 76 Va. 614; Newberry v. Stuart, 86 Va. 976, 11 S. E. 880; Daily’s Ex’r v. Warren, 80 Va. 512, and Kendrick v. Whitney, 28 Gratt. (69 Va.) 646, that in Virginia at least the general rule, that a final decree cannot be reheard except upon the two grounds above mentioned (of error apparent on the face of the record or of after-discovered evidence), has been modified; and they invoke the following statement in the opinion of Judge Staples in Wooding v. Bradley, supra, 76 Va. 614, as applicable to final as well as to interlocutory decrees, because, as it is argued, the court in the last named case, and in all of the cases cited in the present paragraph, was- dealing with final decrees. We shall now consider the question thus raised.
The statement in the opinion of Judge Staples, men
An examination of the authorities referred to discloses the following:
Wooding v. Bradley was a creditor’s suit having for its object the sale of the land of a decedent debtor’s estate to satisfy the debts. The decree in question (of October, 1874) confirmed the commissioner’s report of the Terry debt, among other debts, and appointed commissioners to sell the land to pay the debts reported. This manifestly was not a final but an interlocutory decree confirming a commissioner’s report. Such a decree is appealable under the statute in Virginia because it is one “adjudicating the principles of a cause” (sec. 3454 of the Code), but it is nevertheless but an interlocutory decree, and the same court which entered it has the power to rehear and to correct any error in it at any time before final decree and thus remove the cause for appeal. 1 Hogg’s Eq. Proc. sec. 568. A decree of sale is not a final but an interlocutory decree. Dellinger v. Foltz, 93 Va. at p. 733, 25 S. E. 998, and cases cited. It is true that in August, 1876, and January, 1877, Terry was paid the amount of his debt as reported by said commissioner’s report. But when the decree in question was asked to be reheard there were funds which arose from the sale of the land still in the hands of a commissioner of sale and under the control of the court of sufficient amount to pay the balance which was in fact still justly due and unpaid on the Terry debt. The payment and satisfaction of the whole of such debt was a part of the relief that was contemplated by and was one of the objects
Nelson’s Adm’r v. Kownslar’s Executrix, 79 Va. 468, was also a creditor’s suit for the sale of land of a deceased debtor’s estate to satisfy the debts. The decree which the court said was open to attack by petition to rehear (the decree of March, 1875), merely confirmed a commissioner’s report which ascertained the commuted value of and allowed the widow a certain credit for her dower in so much of the land as had been sold and had been purchased by her, and appointed commissioners to assign dower in kind in so much of the land as had not been sold, and allowed the widow to then elect to claim dower. Manifestly this was in truth merely an interlocutory decree, as the court expressly held it to be.
Newberry v. Stewart, 86 Va, 967, 11 S. E. 880, was a suit to enforce a contract for the sale of land. The ascertainment of the balance of purchase money which was unpaid was a matter purely preliminary to a final decree. The Holbrook report in question contained a statement of the amount of certain debts which the purchaser claimed tof have paid and to be entitled to set up as credits on his purchase money obligation. The decree in question confirmed that report. But that report itself purported to be only “a partial report,” and there were other proceedings which the court in its opinion said indicated that it was subsequently so regarded and not as even a determination at that time of that matter, and the court held that the decree in question was merely an interlocutory decree confirming a commissioner’s report. The court said, in part, on this subject: “* * * it is well settled that whether an interlocutory decree confirming a commissioner’s report shall be modified or wholly set aside, or not, is generally a matter
Daily’s Executors v. Warren, 80 Va. 512, was a creditor’s suit for the sale of lands of a deceased debtor to satisfy the debts. The decree in question involved merely a controversy between certain parties claiming as assignees of a part of one of the lien debts reported in the cause. The fund from the sale of the land was under the control of the court at the time such decree was entered, the lien of the debts being treated as transferred from the land to the fund. The assignor was not a party to the cause at the time the decree was entered on the petition of one of the rival claimants, nor was the other rival claimant then a party to the cause so far as appears from the report of the case. Later the assignor and such other rival claimant filed their petition asking that the decree aforesaid be set aside in favor of the latter as holding under a prior assignment, which was done. Manifestly there Avas no binding adjudication of the rights of the claimant under the prior assignment made by the decree drawn in question. Moreover, it was plainly merely an interlocutory decree so long as the fund still remained under the control of the court, as the court held.
Kendrick v. Whitney, 28 Gratt. (69 Va.) 646, the remaining authority relied on by appellees, as aforesaid, was a judgment creditor’s suit for the sale of land of the judgment debtor to satisfy the lien of the judgments. The descree in question merely provided that the plaintiffs recover of the judgment debtor the amount of their judgments;
We come now to the consideration of the questions raised by the bill of review filed by the appellee surety company as set forth in the statement preceding this opinion.
What is said above disposes of all of the questions thus raised except two, which will be disposed of in their order as stated below.
This question must be answered in the negative.
However, if it were otherwise and the commissioner’s report were considered as showing on its face that no notice was given the surety company of the proceedings before the commissioner, that, in our opinion, would not alter the case.
In White v. Johnson, 2 Munf. (16 Va.) 285, the report of the commissioners was silent as to notice, the cause was regularly heard on the report, to which there was no exception, and the decree in question was entered confirming the report and dismissing the bill. The decree was objected to on appeal for errors alleged as apparent on the face of the report, consisting of failure to charge certain interest and for its failure to show that notice of the proceedings before the commissioners was given to the plaintiffs. Counsel for defendants took the position as to the notice that there could be no different rule “as to reports of commissioners from that which prevails with respect to depositions. If the exception to a deposition for want of notice
In Winston v. Johnson, 2 Munf. (16 Va.) 305, the report of the commissioner merely stated, concerning the time of the execution of the decree of reference, that he “appointed that day for the defendants to render the account,” and that they “failing to attend” he proceeded, etc. Counsel for the defendants admitted that “want of notice is an extrinsic objection, but” (claimed that it was) “sufficiently established by Winston’s affidavit to the truth of the bill of review.” Counsel for plaintiff took the position that the phrases of the report above quoted “sufficiently imply” that the defendants “must have had notice. And, if they had not, they should have made the objections before the decree was rendered * * *” The opinion of this court, per curiam,, so far as material, is as follows: “The court is * * * of opinion that * * * the allegations of the appellant that the report of the commissioner was made without due notice to him of the time and place of taking the same * * * are (not) of a character to justify a bill of review.”
As appears from the statement preceding this opinion, the account, as stated in the commissioners report, was
There remains but one question for our consideration, and that is this:
7. Was it error in the court below to decree that the guardian should pay interest from November 1, 1915—the date on which he was removed as guardian—on the balance in his hands as of that date, since such balance consisted of interest as well as principal, and' the effect of the decree was to require him to pay interest from such time on such interest, as well as on the principal sum in his hands as of such date?
The case of Cunningham v. Cunningham,, 4 Gratt. (45 Va.) 43-46, is relied on for the appellees as containing a contrary holding, but an examination of that case discloses that it is not in conflict, but wholly in accord, with what is said above with regard to the correct rule on the subject. What that case condemned was a revision of the decree there in question which added the interest which had accrued on the balance in the guardian’s hands, from the termination of the wardship in February, 1833, to November 1, 1842, to the sum for which the guardian was liable as principal, and required the guardian to pay from the latter date interest on such aggregate, the result of which was to hold him liable for interest on interest which accrued after the termination of the wardship. That result was what was held to constitute the error in the decree.
For the foregoing reasons, we are of opinion that the decrees entered by the court at its January term, 1916, and November term, 1917, were erroneous, in so far as they granted a rehearing of and were in conflict with the provisions of the decree of the November term, 1915, aforesaid. In all other respects the decrees of said January, 1916, and November, 1917, terms of court and the allowance of the $2,800 of loans above mentioned as a credit on the decree against the guardian, entered at the November term, 1915, will be allowed to stand, and the cause will be remanded to the court below for further proceedings to be had therein not in conflict with this opinion.
Reversed and remanded.