55 W. Va. 126 | W. Va. | 1904
Lead Opinion
A bill in equity filed in the circuit court of Wood County by C. P. Morrison and Co. and John A. Page suing for themselves and all other creditors of Thompson Leach, deceased, against Minerva Leach, executrix of Thomas Leach, and others, stated that the plaintiffs were creditors of Thompson'Leach, and that said executrix had before that filed a bill to convene the creditors of Leach, fix their debts, sell his real estate, and apply the assets to the payment of such debts, and that a decree had been made fixing debts against the estate, among them those of Morrison and Co. and Page, and also a large debt in favor of the Parkersburg National Bank, and directing Leach’s real estate to be sold by the executrix, and that she had sold the real estate, and that the sales were confirmed, and that the assets were not sufficient to pay the debts in full. The bill further stated that Minerva Leach as executrix gave bond with Dave D. Johnson and J. L. Buckley as sureties; that she had failed to comply with the decree by applying the assets coming to her hands as directed by it, and had wasted the assets; that notes given by purchasers of the realty to the executrix had been turned over to J. L. Buckley, or the Parkersburg National Bank to be held by them as collateral security for their debts; and that there had been paid to Buckley and Johnson and the Parkersburg National Bank, out of the assets, money in excess of the ratable portion going to them. The bill prayed that the executrix and her bondsman be held liable for such assets, and that the Parkers-burg National Bank and other creditors who had received more than their proper pro ratal .shares of the assets be held liable therefor. The said Johnson and Buckley were sureties in the executorial bond of the executrix. Upon the bill of Morrison and Co. and Page, taken for confessed as to the Parkersburg National Bank, a decree was pronounced against Minerva Leach, Dave D. Johnson and J. S. Buckley, by reason of the executorial bond, for $3,878.72, to be paid to Levin Lewis as a special commissioner constituted by the decree to make distribution of the funds as directed by the decree; and the decree further re
The first decree is appealable, as like a reversal on appeal, it would bar any later decree, against the bank. It decided that the bank was not liable.
Section 5, chapter 134, Code 1889, provides that a decree entered upon a bill taken for confessed may be reversed on motion, but that “reasonable notice to the opposite party, his agent or attorney” of such motion must be given. “Opposite party” under this statute does not mean only the plaintiff, but it means any party to the suit who has an interest in upholding the decree sought to be reversed whose pecuniary or property interest would be prejudiced by reversal. The word “opposite” as used in the statute means opposite 'in interest. The statute as to depositions requires notice to the “adverse party.” I do not think a deposition can be read against any party without notice to him, no matter whether he is plaintiff or defendant. It cannot possibly be thought that a decree can be reversed without notice to a person interested in its maintenance. He has no day in court. It would take his property without due process of law. We cannot give the statute a construction which would militate against the constitutioon and afflict gross injustice, Minerva Leach had a deep actual interest in having the decree against the bank maintained, because the sum decreed against it operated as a partial payment on the sum decreed against her, and increased the assets of the estate in which she was
It cannot be said that Minerva Leach must first herself move the circuit court to reverse the decree of reversal since it was rendered in absence of appearance by her to the motion. Any one has a right to appeal from an erroneous decree, as a general principle, whether on a bill taken for confessed or on appearance; but chapter 134 curtails this right of appeal in case of a decree on a bill taken for confessed to the extent that it requires first an unsuccessful motion in the circuit court; but this applies only to cases upon a bill taken for confessed; it is so limited; it does not apply to an erroneous decree upon a motion to reverse under chapter 134. From such decree appeal at once lies. That chapter gives it, as well as chapter 135. Midkiff v. Lasher, 27 W. Va. 439.
The circuit court could not, for want of notice to Minerva Leach, decide upon anything assigned as ground to reverse the decree, because it had no jurisdiction; nor can we do so.
We cannot say whether the decree dismissing the bill as to the bank is right or wrong, because Minerva Leach has. made no motion to reverse it in the circuit court, it being a decree in the absence of her appearance. Bock v. Bock, 24 W. Va. 586; Forest v. Stephens, 21 Id. 316. Whether by reason of this decision the decree dismissing the case as to the bank is made null and void, because of the finality of the first decree ending the case which decree is reinstated by this decision, or merely erroneous, we do not say. Whatever its status we can not pass on it for-want of such motion. The decree of the 21st day of June, 1900, is reversed so far as it sustains the motion of the Parkersburg National Bank to reverse the decree pronounced in this cause on the 23rd day of February, 1899, and reverses so much of the latter decree as ordered said bank to pay $2,122.30 to special commissioner Levin Smith, and said motion is overruled — which is ordered to be certified to said circuit court. No remand,
Reversed,
Dissenting Opinion
(dissenting) :
I must dissent in this case. The bill was taken for confesed as to Minerva Leach. She never appeared in the cause except to make an exception to a commissioner’s report, which was sustained in her favor. So the cause in all other respects stands on bill taken for confessed. On the 21st day of February, 1899, a decree was entered against The Parkersburg National Bank for the sum of $2,965.42, to be paid to Levin Smith, special receiver, to be distributed in certain proportions among a large number of creditors of Thompson Leach, deceased, and if collected and so distributed Minerva Leach was to have credit therefor on a large debt decreed against her. There was no decree in her favor against The Parkersburg National Bank, and she was only collaterally interested in such decree, while > the plaintiff and all the other creditors of Thomas Leach, deceased, were directly interested therein.
On the 29th day of April, 1899, another order was entered in the cause awarding execution against The Parkersburg National Bank for the sum aforesaid. The cause was continued on the docket for a final distribution of the funds and for the future report of the special receiver.
■ On the 5th day of March, 1900, the Parkersburg National Bank filed its notice of error in the decree of the cause, which it had given to the plaintiffs, the parties at whose instance the decree was entered against it. The motion to correct the decree was then submitted to the court, who took it under advisement.
On the 21st day of June, 1900, the court entered another decree reciting that “This cause came on again this the 21st day of June, 1900, to be further heard upon the papers formerly read and proceedings hereinbefore had, the notice duly executed on the plaintiff that the Parkersburg National Bank would! move the court to set aside the decree of February 23, 1899, the motion in accordance with said notice and was argued by counsel.”
Then the court proceeded among other things to set aside the former decree in so far as the Parkersburg National Bank was concerned, and recommitted the cause to a cimmissioner with instructions as to the extent of his inquiry. Is this such a final decree as is appealable ? The court still had jurisdiction
To throw down the bars in this manner is to destroy the evident intention of the statute to supply a mere substitute for an appeal and open wide the field for endless litigation to.parties not legally interested in the decree. Suppose the bank had appeared before the original decree, demurred to the bill and it had been dismissed as to the bank, could this co-defendant who had never appeared in the cause have afterwards moved to set aside the decree dismissing the bill as to the bank and on her motion overruled, have appealed to this Court? Would not this Court have promptly held that she hand no such legal interest in the decree as entitled her to appeal, and that such decree did not injure her, or preclude her rights to the assertion of any just claim or remedy she might have against the bank ? Is not this precisely the same condition she is in now? She has lost no legal right or remedy by the decree of which she complains. Nor is the adjudication between her and the bank, for she had no litigation with the bank. I-Iow different is it with the illegal decree this day made by this Court, for which the aid of limitation, five years from the date of the erroneous decree entered against the bank, ending on this day, it forever precludes the bank from getting rid of a decree except by payment which the circuit court that entered it has determined to be erroneous and unjust. As between the plaintiffs who had notice and the de
The appeal should be dismissed as improvidently awarded.