81 Va. 757 | Va. | 1885
after stating the case, delivered the opinion of the court.
No doctrine is better settled than that every man is entitled to a day in court to defend his rights, and that a decree rendered against him, when he has had no opportunity for defence, is a nullity, and may be so pronounced by any court wherein it may be drawn into controversy.
Moseley v. Cocke, 7 Leigh, 224, was a suit in chancery instituted by the appellees as creditors of William Bentley,
This court held that Moseley was not a party defendant in any fair sense of the term, and that the decree was, as to him, a nullity. Tucker, P., delivering the opinion of the court, said: “No process is prayed against him by the bill, and, therefore, according to the authorities, he was not a defendant. * * * * In short, a decree against one not named in the bill, and in nowise comprehended in its general allegations, is a nullity.” See also the opinion of Lacy, J., in the case of Cronise v. Carper, 80 Va. 678. And so, in the case in hand, the appellant, Ogden, was not named in the bill, and no process or relief was therein prayed for against him, nor was he comprehended in the general allegations of the bill. And being no party to the suit, Ogden certainly could not be bound by any decree pronounced therein.
It is true, as contended by the learned counsel for the appellee, that any purchaser who buys property embraced in a suit, and subject to the control of the court, becomes a quasi party
The proper remedy for the collection of the purchase money due from' and unpaid by Ogden on the property purchased by him at the trustee’s sale (the judgments recovered at law on his bonds having proved unavailing), was by a suit in chancery to subject the property itself. The cases of Nulton v. Isaacs, 30 Gratt. 726, and Thurman v. Morgan, Receiver, 79 Va. (4 Hansbrough) 367, are cases in point. In the latter case, one Henderlite, as receiver, executed his official bond, and before making report, he died, and Morgan succeeded him. A rule was awarded to compel Henderlite’s administrator to report his decedent’s action as receiver. He reported that the fund had not come into his hands, and that he could not report Henderlite’s action. Accounts having been ordered and taken, a report was made that there was $3,680 due from Henderlite, as receiver. The report was confirmed, and Morgan obtained a rule against Henderlite’s administrator and sureties to show cause why a decree should not be entered against them for the said sum. They appeared and moved to quash the rule; but the motion was overruled, and the decree was entered against them.
In Nulton v. Isaacs, supra, this court held as invalid a judgment against a certain bank, in the hands of a receiver, which had been obtained on a summary rule to show cause, that had been awarded in a chancery suit in which the receiver was appointed. Moncure, P., delivering the court’s opinion, said: “The order is void on its face. The defendant is entitled to the benefit of a common-law action in which he can regularly make his defence, and have the benefit of a trial by jury. An order might, no doubt, have been made in that suit for the collection of the debts due the defendant, and liable to the claim of the plaintiff. But such collecting, if it could not be made without legal proceedings, would have to be made by action at common law.” And so, in the case under consideration—whilst there was an order for the collection by the commissioner, by suit or otherwise, of the sums of money loaned out by the guardian, and subject to the claim of the ward; and judgment had been recovered at law on Ogden’s bonds, executed for the purchase price of “Pedlar Mills,” bought by him at the trustee’s sale, and not under any decree in this suit in chancery; and while the judgment at law proved unavailing, yet the mere report of these facts by the commissioners did not make Ogden a party to the chancery suit, and did not authorize the summary proceedings against him by rule for a resale > nor could such proceedings render him amenable to a decree
Decree reversed.