Miller v. Turner

111 Va. 341 | Va. | 1910

By the Court.

The case of Miller, Trustee, v. Smith, et als, lately pending in this court, was remanded to the Circuit Court of Rappahannock county for further proceedings. That court referred thé cause to a commissioner to make a report distributing the fund under its control in accordance with the decree of this court. The commissioner reported on the 6th of November, 1909, returning with his report a paper in the nature of a petition from Edward T- Jones, one of the parties in interest, in which he claimed that there were other sums which should be allowed him, and with this claim the report of the commissioner deals.

Miller filed an answer to the petition of Jones, in which he insists that the matters set out in the petition are res judicata. When the case came before the circuit court upon the papers formerly read, the commissioner’s report, the petition of Jones and the answer of Miller, exceptions to the report, the court, holding that the claims of Jones were not valid debts against the fund, dismissed the petition and directed the commissioner, to whom the report was recommitted, to make a distribution of the fund in accordance with the decree of the Supreme Court of Appeals and the written opinion therein filed, and to carry out the decree, with the exception that after directing the appellees interested in the subject matter of the litigation, to-wit: E. T. Jones, Mary Ann Smith and R. E. Miller, to pay the costs assessed against them by the Court of Appeals, the said circuit court expressed the opinion and directed that one-third of the costs, being the share of E. T. Jones, should be paid by John B. Miller, by reason of his obligation to pay costs as contained in his bond for four hundred dollars to said Jones, dated February 5, 1903, which is filed in the cause.

The petitioner contends that these costs directed by the circuit court to be paid by Miller as the share of E. T. Jones were the costs incurred in the court of appeals, and were by that court decreed to be paid by Jones, and that the circuit court was without jurisdiction or authority to do otherwise than carry out the order of this court.

In the bond referred to for $400, Miller binds himself to pay all costs decreed against Edward T. Jones in the suit of Smith, Trustee, against J. B. Miller and R. E. Miller. Trustees, but it is plain, we think, that the costs there referred to were such as Jones had, at the date of the bond, incurred in the suit or which might be incurred by him, the attitude of the parties remaining unchanged, but that it does not bind Miller to pay costs when Jones became hostile to Miller, and these very costs were incurred in defending a litigation to which Jones was an active party.

However this may be, the rights of the parties growing out of the bond which was given were the subject of litigation before this court at the former hearing, which is irrevocable and finally disposes of this question- Not only is this so, but Jones appeared' before this court at the September term, 1909, and asked for a rehearing of the decree of this court rendered on the 25th of June, 1909. In that petition the whole subject was again presented to this court, and the attention of the court specifically directed to the stipulation in the bond of $400 given by Miller to Jones — that he was to pay all costs decreed against Jones in the suit of Smith, Trustee, v. Miller. That petition was considered by this court and its prayer denied, so that the whole subject had been fully adjudicated and cannot be reopened.

We are, therefore, of opinion that the writ of mandamus should issue as prayed in the petition. It is further ordered that E. T. Jones pay to the petitioner his costs in this behalf expended.

Mandamus awarded.