128 Va. 676 | Va. | 1920
delivered the opinion of the court.
This is an appeal from a decree of the Circuit Court of Pulaski county, entered on September 10, 1918, in the chancery cause of Robert L. Gardner, assignee, etc. v. R. P. Harris, et als.
This suit has been pending for many years in the court, supra. Originally it was in the name of R. L. Gardner, trustee of G. W. Ould v. R. P. Harris and Carper, Admr. Several amended bills have been filed from time to time, and
Harris appears to have owned a large amount of real estate and to have conducted his affairs in- a very loose and irregular 'fashion. At different times, judgments amounting in the aggregate to a considerable sum were recovered against him. His lands were alienated in numerous parcels, and by different and successive conveyances, requiring a tedious and elaborate account to be taken to arrive at the order of their respective liability to the liens considered to be established.
In the course of the long drawn out and unduly protracted proceedings in these causes, various answers were filed and an account directed to be taken by commissioner Morton. This account appears to have been thrice recommitted. The last report, filed on August 22, 1917, is a most elaborate, comprehensive and painstaking document. In this report commissioner Morton includes as liens upon the estate of R. P. Harris two judgments, one of G. W. Ould v. Moon and Harris, and the other of G. W. Ould v. Moon, Hauley & Co. These judgments are reported as belonging to R. L. Gardner. This report was excepted to by various parties on various grounds.
The case came on to be heard on November 16, 1917, on the report, supra, and exceptions, and various papers recited in the decree. From a recital in this decree it appears that Geo. T. Richardson and Sarah Galway had tendered a petition to rehear and review, which the court declined to allow to be filed. The decree, with certain indicated reser
Sometime in April, 1918, Geo. T, Richardson, R. C. Croy and others presented to his honor, A. A. Campbell, judge of the Circuit Court for Pulaski county, a bill for an injunction. This bill referred to the decree of November, 1917; supra, and the report of commissioner Morton, alleging that the judgments of Ould v. Moon, Hawley & Co., and of Same v. Moon and Harris, were never properly indexed and docketed, and not being notice to complainants as purchasers for value were, as to such complainants, void and of no effect. Complainants averred further, that they were entitled to have the decree of November, 1917, reviewed, and the same annulled and rescinded so far as sale of their property was concerned. Alleging irreparable injury and lack of adequate remedy elsewhere, complainants prayed an injunction against the sale of their property until the further order of the court. On April 16, 1918, Judge Campbell granted an injunction according to the prayer of complainants’ bill.
On May 13, 1918, Richardson, Croy and others presented to the Circuit Court for Pulaski county a petition for rehearing, styled in the record as' an “amended petition for a rehearing on injunction.” This petition, after reciting in detail the steps that had been taken in the various proceedings against R. P. Harris, alleged that the decree of November, 1917, was erroneous because of errors of fact and law apparent on the face of the record, and because of other “facts and evidence,” presented to the court in the original and amended petition.
The interest' of the petitioners in the subject matter consists in the fact that the judgments, supra, were established as liens by the decree complained of, and the lands of said petitioner directed to be sold to discharge the same.
The plaintiff objected to the filing of the foregoing petition and exhibits therewith, and demurred to and moved to dismiss the same, and to dissolve the temporary injunction theretofore granted. By consent of parties the cause was made a vacation cause, and subject to certain agreed stipulations was continued. At a court held in September, 1918, the court allowed the petition to be filed, but proceeded to sustain the demurrer to the same, “whether considered as a bill of review, or a petition to rehear,” and ordered it to be dismissed. In the same decree the court dissolved the injunction theretofore awarded, and directed the commissioners to carry out the decree of sale of November, 1917. From this decree an appeal and supersedeas was allowed by one of the judges of this court.
“It is not always an easy matter to determine whether a particular decree is final or not. Nor are the courts fully in accord as to the true characteristics of such a decree,” but applying certain criteria, well established by the Virginia precedents, to the decree in question, we entertain no doubt that this decree is interlocutory and not final. An interlocutory decree may adjudicate the principles of a cause as well as a final decree; hence, complete evidence of finality is not afforded by the adjudication of such principles. Mr. Minor’s definition of a final decree is in these words: “A
In the case of Ryan’s Adm’r v. McLeod, 32 Gratt. (73 Va.) 376, Judge Staples, speaking of a decree like the one supra, says: “No title could be made to the purchaser without further action of the court; and what is most material to notice, no disposition is made of the purchase money; no direction given to the commissioner on the subject, so that the creditors could not receive a dollar of the proceeds, nor the heirs of the surplus, without a further decree. If this be a final decree, the court has deprived itself of all control over the subject matter of controversy, and ended the cause, without giving the parties the slightest relief. The very fact that no direction is given as to the proceeds of sale, and that the commissioners are required
See also the case of Repass v. Moore, 96 Va. pp. 147-150, 30 S. E. 458, 459, in which Judge Keith says: ‘The decree under consideration does not decide the whole matter in contest and leave nothing for the court to do. In order that lienors before the court might enjoy the fruits of litigation, it was necessary that there should have been a decree for the sale of the debtor’s land, that sale reported and confirmed, and a distribution of its proceeds by subsequent decrees to those entitled. The decree before us had not fully ascertained the liens, and the cause was remanded to a commissioner for further inquiry and report. If the report of liens had been complete, and had been confirmed, and a decree for sale had been entered, it would not have been a final decree, for the action of the court upon the report of sale would still have been necessary.”
To the same effect, see Rawlings v. Rawlings, 75 Va. 76; Spoor v. Tilson, 97 Va. 279, 33 S. E. 609; Gills, by etc. v. Gills, 126 Va. 526, 101 S. E. 900; 2 Barton’s Chy. Pr. (1st ed.), sec. 233, p. 773.
“Until a final decree is entered and the court adjourned, all the proceedings from the first decree onward, though had or entered at former terms of the court, are interlocutory and in the breast of the court. Where, therefore, before final decree, any material error is discovered in any decree, the court on having its attention directed to the error, or the newly discovered evidence, is free to hear the parties, and to make such correction as justice demands. This is done by means of a petition to rehear.”
The petition does not state its case very clearly, or satisfactorily, but it sufficiently appears therefrom that the error imputed to the decree of November, 1917, is that it established judgments as binding liens upon the lands of the complainants which, upon the face of the commissioner’s report, do not appear to have been docketed and indexed as required by the statute. The complainants allege that they had no notice, actual or constructive, of these judgments, and that
The statutes with respect to indexing and docketing judgments are as follows:
“In such docket there shall be stated in separate columns the date and amount of the judgment; the names of all of the parties thereto; the alternate value of any specific property recovered by it, the date of docketing it, the amount and date of any credit thereon, the court in which, or the justice before whom it was rendered; and when paid off and discharged, in whole or in part, the time thereof, and by whom such payment or discharge was made where there is more than one defendant.” Code 1904, sec. 3560.
“No judgment shall be a lien on real estate as against a purchaser thereof for valuable consideration without notice, unless it be docketed according to the provisions of this chapter, in the county or corporation wherein such real estate is, either within twenty days next after the date of such judgment, or fifteen days before the conveyance of said estate to such purchaser.” Code 1887, sec. 3570.
“Every judgment shall, as soon as it is docketed, be indexed by the clerk in the name of each defendant, and shall not be regarded as docketed as to any defendant in whose name it is not so indexed.” Code 1904, sec. 3561.
“The clerk of every court shall have an index to each book he is required to keep, making convenient reference to every order, record, or entry therein. Every execution and every judgment or decree for money shall be indexed, as well in the name of the person against whom as in the name of the person in whose favor the same is.” Code of 1904, sec. 3183.
In the latter case a judgment was obtained against various parties by name, doing business under the partnership name of Mitchell, Green and Watson, but when the judgment was entered on the judgment lien docket, it was entered against Green, Watson and Mitchell, omitting the Christian names. The court said: “We think that the failure to add the Christian names is fatal to the claim. Though good as between the parties, it cannot affect subsequent purchasers.” See also Fulkerson v. Taylor, 102 Va. 314, 46 S. E. 309.
“Amos Eaves.
“Principal of judgment..............$ 750
Interest from December 10, 1892..... 1071
Costs ............................ 175
Amount due August 20, 1917..........$1996
Date December 10, 1892 — docketed February 9, 1893.”
The entries with respect to the Ould judgments are as follows:
“O. W. Ould.
Judgment vs. Moon and Harris (R. P. Harris being a
“Principal of judgment ............$31418
Interest from May 10, 1890.......... 51420
Costs ............................ 2645
Amount due August 20, 1917.........$85483
“Judgment vs. Moon, Hawley and Co. — R. P. Harris being a partner — rendered at same term of same court as above.
“Principal of judgment.............$56682
Interest on $12.82 from' February
11, 1891 ........................ 2040
On $100.00 from March 4, 1891..... 15876
On $102.00 from April 25, 1891.... 16157
On $102.50 from May 25, 1891...... 16186
On $249.50 from June 25, 1891...... 39150
Costs ............................ 1471
Amount due August 20, 1917. .. .$1,47512 (N. B. — These two Ould judgments belong to R. L. Gardner.) ”
For the reasons given, the decree of the Circuit Court of Pulaski county, bearing date September 10, 1918, is reversed, and this case is remanded to said court for further proceedings therein conforming to the principles herein announced and conclusions reached.
Reversed.