80 Va. 342 | Va. | 1885
Lead Opinion
delivered the opinion of the court.
The plaintiffs, who constitute the firm of Kerngood Bros., in their bill allege that they are creditors of one J. B. Hofheimer, who had recently sold his stock of goods and personal property to one B. Kahn, with intent to defraud the creditors of the said Hofheimer; that Kahn had conspired with Hofheimer in his attempt to carry out this fraudulent purpose; and they pray that Kahn and Hofheimer may be enjoined from disposing of said property; that a receiver may be appointed; the conveyance be declared void; and the property may be sold under the direction of the court. This bill was filed in the clerk’s office of the corporation court of the city of Norfolk, on the 27th day of April, 1888, in vacation; and on the same day an injunction was awarded; a receiver appointed, and a sale of the property was directed by the judge of that court, in accordance with the prayer of the bill. On the next day Kahn filed his answer, in •which he specifically denies every allegation of fraud in the bill positively, so far as he was concerned, and to the best of his information and belief, so far as his vendor, Hofheimer, was concerned. On the 29th April, 1883, the receiver advertised the property for sale, at auction, on the 4th May then next en
The first question, therefore, which arises is as to the power of this court to take cognizance of the case. It is insisted that this being a mere order refusing to dissolve an injunction, that no appeal lies therefrom. Such, however, is not the case. The Code 1873, chap. 178, § 2, provides that “ any * party to a case in chancery wherein there is a decree or order dissolving an injunction, or requiring money to be paid, or the possession or title of property to be changed, or adjudicating the principles of the cause, * * * * may present a petition for an appeal from the decree or order,” &c. And Judge Moncure, in the case of the Baltimore and Ohio R. R. Co. v. City of Wheeling, 13 G-ratt. 57, said, “As to the objection that no appeal lies from the other order; it being a mere refusal of the judge in vacation to dissolve the injunction, and not an order adjudicating the principles of the cause. There seems to be no substantial difference between the provision on this subject in the Code, p. 682, ch. 182, § 2, and the law as it existed when the Code took effect. In Lomax v. Picot, 2 Rand. 247, it was decided that an order overruling a motion to dissolve an injunction might come within the terms of the law allowing appeals from interlocutory orders, and within the mischief intended to be remedied by that law. The appeal in that case was from such an order, and the court entertained jurisdiction of it. In Talley Tyree, 2 Rob. R. 500, it was held, in accordance with Lomax v. Picot, that an appeal lies to this court from an order of the circuit court overruling a motion to dissolve an injunction which was improvidently granted. The law under which those two cases were decided
Upon this point we think the statute and ease above (¡noted imist. be regarded as conclusive. The appeal in the case before us was taken as well from the order appointing a receiver and directing a sale, as from that refusing to dissolve the injunction ; and as it cannot be contended with any show of success that the stock of goods described in this case is of the character of those spoken of in section 16 of chapter 148, Code 1873, which the court is authorized to sell because “perishable and expensive to keep,” we must assume that the court regarded and treated them as the property of Hofheimer, for upon no other ground could the judge have the slightest pretext for selling this property; and this was a practical adjudication of the matter in issue, namely, the title to the property; and even then, his action must be regarded as irregular and premature.
But it is contended, that the amount of the plaintiff’s claim being under $500, that this court cannot take jurisdiction of the case. This contention is founded, in our judgment, upon an entire misapprehension of the real matter of controversy. This is a suit to set aside a conveyance alleged to be fraudulent as to creditors. The value of the property, stated in the deed, is $1500, and upon this appeal, in the absence of proof of its real value being less, we must assume that amount as its value, and it is therefore sufficient to give jurisdiction. As between the plaintiffs and the defendant Kahn, there is no contest over a debt. It is admitted, that no matter what may be the debt due from Hofheimer to the plaintiffs, that Kahn does not owe them one cent. Nor is it pretended that Kahn’s property, if it be
And this brings us to the last question in the case, which is, whether the court should have dissolved the injunction on bill and answer or not? The general rule is, that when a motion to dissolve comes on to be heard upon the bill and answer, and the answer denies all the equity of the bill, the injunction is usually dissolved; but this rule is not inflexible, for the court may, for good cause shown, refuse to dissolve flic injunction, and continue it to the hearing, without adjudicating the principles of the cause. Sands’ Suit in Equity (new edition), § 366; 1 Barton’s Ch’y Pr. 467; B. & O. R. R. Co. v. City of Wheeling, 13 Gratt. 58. AVe think the case at bar falls within the exception. The law of this state being settled since the case of Ducts v. Turner, 4 Gratt. 423, that the retention of the possession of personal property by the vendor, after an absolute sale, is ;prana facie evidence of fraud as against the creditors of the vendor, which will vacate the transaction as to them, unless the vendee shall prove it to be fair and bona fide. AVe think it was proper for the judge to have refused to dissolve the injunction upon the mere answer of only one of the parties to the assignment.
AVe are of opinion, therefore, to reverse the order of the judge of the corporation court of the city of Norfolk, made in vacation on the 27th day of April, 1883, in so 'far as it directs a sale
Dissenting Opinion
dissenting, said:
I cannot- concur in the opinion of the majority of the court just pronounced, without in my opinion overstepping the jurisdictional limits of this court, as plainly prescribed by the constitution.
That the ease is one of unusual hardship upon the appellant cannot be denied. In fact, it is so clearly a case of the wrongful exercise of the discretionary powers of the court below, that, but for the inhibition imposed by the constitution, I would not hesitate to break away from any mere line of precedents sanctioning such manifestly erroneous and oppressive practice as that disclosed by the record in this case.
Notwithstanding all this, I cannot be unmindful of the fact that the constitution, as I understand it, in most positive and unequivocal language actually prohibits this court from taking jurisdiction of the case. Section 2, of article 6, of the consti-sution of Virginia, declares that this court shall have appellate jurisdiction only, except in eases of habeas corpus, mandamus and prohibition; and expressly provides, ‘’It shall not have jurisdiction in civil cases where the matter in controversy, exclusive of costs, is less in value or amount than five hundred dollars,” with certain enumerated exceptions.
That this case does not come within any of the exceptions lhentioned in said 2nd section will he conceded by every one. That it is a dril case in the sense in which that term is employed in said section, no one will deny.
It seems, therefore, manifest that, in taking jurisdiction .upon the basis of value fixed by Kahn’s answer (especially under the circumstances of this ease), is for this court, upon an appeal from a mere interlocutory order refusing to dissolve an injunction, to assume in advance of the maturing and hearing of the case upon the merits in the court below, that Kahn’s answer is true, and the case, in effect, at an end. Such surely cannot be safe or sound judicial procedure. But however true Kahn’s answer may be, jurisdiction cannot be founded thereon, or on anything therein contained, as that answer in no possible way constitutes or discloses the real matter in controversy; but is in respect only to a mere incident to the matter really in controversy.
But it is moreover strenuously contended that the order or decree appealed from here, changes the possession and title of property, and that therefore this court has jurisdiction under section 2 of chapter 178, Code 1873. This section must be read in connection with the succeeding third section, and subject to the constitutional provision aforesaid; in-fact, the two sections are in effect but one, the third being in the nature of a proviso to the second, the two being only separated by a colon. The two together read:
“ 2d. Any person who thinks himself aggrieved by an order in a controversy concerning the probate of a will, or the appointment or qualification of a personal representative, guardian, curator or committee, or concerning a mill, road-wav, ferry or landing; or any person who is a party to any case in chancery wherein there is a decree or order dissolving an injunc*350 tion, or requiring money to be paid, or requiring tbe possession or title of property to be changed, or adjudicating the principles of a cause, or to any civil case wherein there is a final judgment, decree or order, may present a petition, if the case be in chancery, for an appeal from the decree or order; and if not in chancery, for a writ of error or supersedeas to the judgment or order, except as follows:
“3d. No petition shall be presented for an appeal from, or writ of error or supersedeas to, any final judgment, decree or order, whether the commonwealth be a party or not, which shall have been rendered more than two years before the petition is presented; nor to any judgment of a county or corporation court, which is rendered on an appeal from a judgment of a justice; nor to a judgment, decree or order of any other court, when the controversy is for a matter less in value or amount than five hundred dollars, exclusive of costs, unless there be drawn in question a freehold or franchise, or the title or bounds of land, or some matter not merely pecuniary.”
The remainder of the third section is unimportant here.
These two sections, by strict grammatical arrangement, of obvious meaning, are purposely linked together, are on the same subject, the one qualifying and explaining the other, and must be read and construed, with reference to each other, in the light of the constitutional provision aforesaid, prescribing the jurisdictional limit of this court. When so read, all idea of this court’s jurisdiction, in this case, is actually precluded.
The legislature, in regulating the subjects of appeal and writs of error, by the said second section, enumerates, out of abundant caution, certain exceptional cases, such as the probate of a will, the appointment or qualification of a personal representative, and mills, roadways, ferries, &c.; in respect to all which the right of appeal is secured by express provision of the constitution. Then follows a further enumeration, in the same .section, of other cases not enumerated in the constitution, it is
It Ardil he observed that said third section of chapter 178,
No one will pretend that there is involved in this suit any question of freehold or franchise, or any question concerning the title or bounds of land; nor can it he said with the least degree of plausibility that there is drawn in question, in this suit, any matter not merely pecuniary : the object of the suit being purely one for the recovery of a pecuniary demand, and it being obvious that in no event can the stock of goods in question (a mere incident to this suit) be affected, except to the extent of the debt sued for. If it could be otherwise, then this court would be absolutely overrun with petty litigation in respect to almost nunibei’less cases where the matter in controversy would range between twenty dollars and five hundred dollars, and where, however small the claim between the limits
By the use of the language securing the right of appeal as to matters “not merely pecuniary,” the legislature never intended to flood this court with vexatious petty litigation; but obviously intended to provide for a meritorious class, as, for example, where the controversy is as to the possession of deeds and other muniments of title, when, irrespective of value (as in the case respecting the title or bounds of land), justice and sound policy demand that the right of appeal should be allowed. But it is useless to pursue this branch of the subject further, except to say that, from whatever standpoint the subject be viewed, there be absolutely nothing to sustain the idea that the stock of goods, as t o which the fraudulent collusion is alleged, can afford the test of jurisdictional amount or value.
“ Matter in controversy,” means the essence of the issue, the thing or value, or amount of the thing for the recovery of which the suit is brought. This subject is exhaustively discussed by Christian, J., in Umbaryer v. Watts, 25 Gratt. 167, where the general view here contended for is clearly and ably held.
It only remains to say, this suit was not brought to recover the stock of goods in question, or the value thereof, but only to recover the plaintiffs’ debt, and as an incident, equitable aid is invoked, which in no manner involves the value of said goods, but simply seeks to subject the same, or so much thereof as may be necessary, to satisfy the claim. In no event can the
T would willingly, even gladly, give the relief sought by this appeal, if I did not feel myself actually- prohibited therefrom by a positive constitutional command. For the reasons above, I am clearly of opinion that this court has no jurisdiction of the case, and that the appeal was improvidently- allowed, and should be dismissed.
Decree reversed in part.