Johnson v. Anderson

76 Va. 766 | Va. | 1882

Burks, J.,

delivered the opinion of the court.

The case is this: John B. Johnson filed his bill in the circuit court of Clarke county against Thomas H. Anderson, a non-resident of the State, to attach a tract of land as his to pay the balance alleged to be due on his promissory note. Anderson not appearing, a decree was pronounced against him for the amount claimed, and the land attached was ordered to be sold to satisfy it. After this, Anderson repeatedly appeared in the cause, and by petition asked that the decree be reheard and that he be allowed to make his defence to the bill. The prayer of the petitions was denied, and from the decrees of denial, on appeal by him to this court, the decrees were reversed and the cause remanded. See Anderson v. Johnson and others, 32 Gratt. 558. When the case came back to the circuit court, and before Anderson again appeared, the complainant Johnsou filed an amended and supplemental bill, in which he alleged that since the filing of the original bill he had obtained a personal decree against Anderson, in a suit in the court of common pleas of Belmont, in the State of Ohio, for the balance claimed on the note in his original bill; that the note was merged in tbe decree, axid he relied on the decree as evidence of the debt claimed. He referred to and filed with the bill as an exhibit an authenticated transcript of the record of the proceedings in the Ohio suit. To this bill Anderson demurred, and also filed a plea of nul tiel record. He also filed an axxswer to the original bill, in which he pleaded the act of limitations as a bar to the demand on the note, and, while relying on the Ohio decree, if valid, as a merger of the cause of action on the note, yet denied its validity.

At the hearing of the cause, the court dismissed the supplemental bill on the demurrer, and the original bill on the plea of the act of .limitations. •

On appeal allowed Johnson from this decree, the three principal questions presented by the assignments of error are:

1. Whether the Ohio decree is valid.

2. If valid, is it a merger of the cause of action on the note?

3. If a merger, can it be relied, on as such by tbe complainant in a supplemental bill ?

Tbe last two questions, of course, need not be considered if, on considering tbe first, it be determined that tbe decree is void.

Tbe transcript of tbe Ohio record being specifically referred to in tbe supplemental bill and exhibited with it, is as much a part of tbe bill as if incorporated in hcec verba, and therefore on demurrer we may look to it to see whether tbe decree it presents is valid or not.

It appears by tbe statements of tbe bill, admitted by tbe demurrer to be true, that tbe note in question was one of two notes, each for tbe same amount, given for tbe purchase money of two lots of land bought by Anderson of Johnson and secured by mortgage on tbe lots, and that, default being made, Johnson instituted tbe proceedings (tbe transcript of which we have) to foreclose tbe mortgage.

Tbe transcript shows a petition filed for tbe foreclosure, process to answer awarded, personal service on Anderson and return, order of sale, sale made (Johnson being tbe purchaser), report of sale returned and confirmed, conveyance to tbe purchaser ordered and costs paid. All of these proceedings thus far appear to be regular, and their validity is not questioned. Tbe last decree, so far as tbe proceedings have been noticed, was rendered on tbe 22d day of June, 1868. Twelve years afterwards—to-wit: on tbe 3d day of July, 1880—another decree was rendered, by which a portion of tbe purchase money under tbe sale previously made was applied to the extinction of tbe first note and tbe residue credited on tbe second (tbe note in controversy in this suit), leaving a balance due on tbe latter, which Anderson was adjudged to pay.

This is tbe decree relied on by tbe appellant; and we we are of opinion that it is void because tbe court bad no jurisdiction to render it. Tbe decree of June 22,1868, was a final decree. It confirmed tlie sale to Johnson and ordered the land to be conveyed to him. He had paid np all the costs of the suit, and the whole of the purchase money in his hands belonged to him. It would have been idle to require him first to pay the money into court, and then order it to be paid back to him. As to the application of the purchase money to the notes, no order was necessary. The law applied it. The exact amount of the money for the purchase and of that due by the notes appeared by the record. There could be no mistake about either the amount or as to the application of the money. It is true, the court in that decree, as it did in the decree of July, 1880, might have formally applied the money and ordered payment of the balance due on the last note, but it did not. It had evidently given all the relief in the cause contemplated. The cause was ended and the court could proceed no further. It had no further jurisdiction in that proceeding, either of the subject matter or of the parties. It would seem that the decree of July, 1880, was rendered in the absence of the defendant upon the mere motion of the plaintiff by his attorney, and without notice to any body. The original cause being ended, the proceeding was a new one against the defendant, and, being had without notice, the personal decree against him is a nullity and would be so treated, we presume, everywhere. It was not applied for until after the lapse of twelve years from the final disposition of the cause in which it purports to have been rendered, and not until after this court, on Anderson’s appeal, had reversed the decrees below and remanded the cause so as to let in Anderson’s defence. The circumstances tend strongly to show that it was fraudulently procured to meet the exigences of this case. At any rate, it is a void decree, and the supplemental bill seeking to set it up was properly dismissed on demurrer.

It results that the^ original bill was also properly dismissed, the act of limitations pleaded being a bar to recovery on the note. Right of action accrued July 1, 1868. Suit was brought May 24, 1875. As the lex fori governs in such cases, the Virginia statute applies. By it the limitation is five years.

The decree of the circuit court will be affirmed.

Decree affirmed.