123 Va. 556 | Va. | 1918
Lead Opinion
delivered the opinion of the court.
The writ of mandamus is an extraordinary legal remedy designed to meet emergencies and prevent a failure of justice, and is not designed as a remedy to enforce the collection of debts. Merrill Man., section 67; High Ex. Rem., section 341. It cannot be used to enforce mere contraetural obligations between private persons, nor, as a general rula, can it be used to enforce the collection of a mere money demand from a public officer if the creditor has a full, adequate and complete remedy by an ordinary action at law. The question is not whether he has a remedy at law, but is that remedy adequate and complete. The other remedy is not adequate where it involves tedious and expensive litigation, or suits against third persons, or is obsolete and inoperative, or does not afford relief upon the very subject matter of litigation. It is not complete where it leaves unperformed the very act the performance of which is sought by the writ. There are also other instances where the'remedy at law is not adequate and complete. But where an
In Arrington v. Van Houton, 44 Ala. 284, a county treasurer having funds in hand, refused to pay, on demand, a claim which had been duly allowed and filed, and it was held that mandamus would not lie as the creditor had a sufficient remedy by action on the treasurer’s bond. For a like reason, mandamus was refused in Speed v. Cocke, 57 Ala. 209, where a county treasurer had, contrary to law, disregarded the order of registration of a claim and paid claims subsequently registered. In Adair v. Hancock Deposit Bank, 107 Ky. 212, 53 S. W. 295, a sheriff failed to pay over the county levy as directed, but mandamus was refused because the party should have exhausted his remedy on the sheriff’s official bond. In Evans v. Thomas, 32 Kan. 469, 4 Pac. 833, it was said: “Writs of mandamus are not .allowed to parties in any case as a mere matter of course. They are allowed only when parties have rights to enforce, and then only when they have no other plain ,and adequate remedy in the ordinary course of the law, and only when justice would be likely to be defeated or frustrated unless the writ of mandamus be allowed.” See also State v. Kansas City, 38 Kan. 593, 17 Pac. 185. It is true that the Kansas cases cited were merely declaratory of the existing law that the “writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law.” This same statute was adopted in Oklahoma, and that State has followed the Kansas cases. In Steward v. Territory, 4 Okla. 707, 46 Pac. 487, a probate judge had collected money by
The mere fact that a party has a remedy by an action on the official bond of an officer, however, will not alone bar relief by mandamus. High Ex. Rem., sec. 35; 26 Cyc. 172. Such a remedy may be far from adequate and complete. For example, the refusal of a clerk to issue process, would give rise to an action for damages on his official bond, but as the relief is not adequate and complete, mandamus lies. People v. Loucks, 28 Cal. 69. So the refusal of an officer to issue a warrant to a creditor, after direction by superiors, may be enforced by mandamus although the creditor had a right of action on the officer’s official bond. Amer. Bridge Co. v. Wheeler, 35 Wash. 40, 76 Pac. 534. Many other cases will suggest themselves.
In 26 Cyc. 172, it is s,aid: “But in case of corporations and ministerial officers, there is an exception to the general rule, and they may be compelled to exercise their functions according to law by mandamus, even though the party has another, remedy by action for neglect of duty.” An examination of the cases cited, so far as available, shows that this statement does not apply where the function to be exercised consists in the mere payment of money for which a full, adequate, complete and speedy remedy is afforded by an ordinary action at law, but is applicable to the doing of some collateral thing. People v. Loucks, supra; Cumberland, etc., Tel. Co. v. Morgan’s, etc., R. Co., 51 La. Ann. 29, 24 So. 803, 72 Am. St. Rep. 442. See also note 34 Am. St. Rep. 317. Again, cases may arise where an action on the officer’s bond would be a wholly inadequate remedy, as where a successor in office could not properly administer the functions of his office unless the money which belonged to the office was surrendered to the successor together with
In Kidd v. Va. Deposit Co., 113 Va. 612, 75 S. E. 145, it was held that “imprisonment for debt passed away in this State with the abolition of the capias ad satisfaciendum- in 1849, and, in a proceeding for contempt, where the contempt is not established, it is error to seek to enforce the return of money improperly paid, by an order directing the ■imprisonment of the defendant if the money be not paid.” It will be observed that, in that case, the contempt was not established. It may be assumed for the purposes of this case that, in this State, a personal decree merely for the payment of money, in ,a suit by one private person against another, cannot be enforced by imprisonment, in the absence .of any question of contempt. But where money is in the hands of .an officer of the court, subject to the order of the 'court, it is clearly a contempt of the court to refuse to surrender and pay over the money as directed by the court, and obedience to the order may be enforced by contempt proceedings involving the imprisonment of the officer. 9 Cyc. 10 and cases cited. Clearly, then, the order of the chancery-cause directing the clerk to pay over the money to the defendant in error could have been enforced by contempt proceedings, unless there is something in the suggestion that the decree was a final decree in that cause.
There can be no question that the decree in the Bucyrus Case .was .a final decree. It disposed of the whole subject of litigation, including the costs, directed the clerk to pay the money in controversy to McArthur, or to whom he should direct, and struck the case from the docket. Rawlings v. Rawlings, 75 Va. 76. But the fact that the decree was final did not render the court powerless to enforce it by contempt proceedings. Had the fact that the clerk refused to pay the money been reported to the court, it could, and doubtless would, have proceeded against him for contempt. Such
The futility of the proceeding by mandamus is demonstrated by a comparison of the decree entered in the chancery cause with the order made in the mandamus proceeding. The decree directed “that the money deposited by the said M. T. McArthur with the clerk of this court may be released, and the clerk is directed to pay the same immediately to the said M. T. McArthur, or to whomsoever he may direct the same to be paid.” By the judgment, “it is ordered that F. B'. Chase, clerk, be and he is hereby directed and enjoined, immediately after the receipt of this order, or service of a copy of the same on him, to pay the said sum of $1,200 -to said M. T. McArthur, or to whomsoever he may direct.” It is difficult to discover .any substantial difference between the decree and the judgment. Each was equally a judgment against the clerk, within the provisions of section 3557 of the Code (1904), declaring that “a decree for land or specific personal property, and a decree or order requiring the payment of money shall have the effect of a judgment for such land, property or money, and shall be embraced by the word ‘judgment’ where used in any chap
The proceedings in the circuit court were irregular, and led to confusion in the trial of the question involved, but as the decision on the merits was in favor of the defendant in error, he cannot assign these irregularities as error. This court does not sit to correct all irregularities that may occur on the trial of a cause, but only such errors and irregularities as are prejudicial to the substantial rights of the party assigning them.
The defendant in error filed his petition for a mandamus against the clerk. The clerk answered, disclaiming any interest in the fund, and offering to bring the money into court for its disposition, but alleging that the fund was claimed bv the plaintiff in error as assignee of the defendant in error, and asking that his “answer may be treated as an interpleader.” On exception to this answer, the court
It is urged upon us that this case is to be considered as upon a demurrer to the evidence, that the evidence is conflicting, and therefore the judgment of the trial court must be affirmed. It is immaterial whether the case be heard as on a demurrer to the evidence or otherwise. There is no conflict of evidence on the question of the giving of the order to Rouse to pay the money to Rinehart & Dennis Company. McArthur .admits that he gave the order. The controversy is over the effect of that order. The trial court did not pass on the validity or effect of the order, or on the state of accounts between the parties, but rested its conclusion solely on the defense of res judicata, which will be noticed later. No controverted fact was passed on by the trial court, but solely a question of law. Under such circumstances the judgment of the trial court is not entitled to the weight claimed for if.
We shall now consider the effect of said order. McArthur had deposited the money with the clerk through the medium of his counsel, W. H. Rouse, and thinking it would come back to him, when released, through the same channel, as Rouse testifies, he gave a written direction to Rouse as follows:
*568 “Bramwell, W. Va., 10/15/15.
“Mr. W. H. Rouse;
“Clintwood, Va.
“Dear Sir:
“When the twelve hundred dollars I have deposited with the Dickenson county court in lieu of bond is of no further service in the Bucyrus Case, as security, please pay this amount to the order of Rinehart & Dennis Company, Charlottesville, Va.
“Yours very truly,
(Signed) “M. T. McArthur.”
This order was enclosed in a letter to Rouse, in which McArthur says: “In other words, when this money is ready to be turned over to me by the court, it is to be sent to Rinehart & Dennis Co. instead, but it is to remain with the court so long as it is any way necessary.” The intention of McArthur at the time he gave this written direction to Rouse is clearly disclosed by his cross-examination as a witness in this cause, as follows:
“Q. Mr. McArthur, was it your intention at the time you gave the order that the money should be paid to the Rinehart & Dennis Company ?
“A. Yes.
“Q. At that time you had no other intention but to pay them ?
“A. No, sir.
“Q. You signed the order?
“A. I did not sign it.
“Q. You parted with the ownership of the $1,200, and it was to be paid to Rinehart & Dennis Company?
“A. Yes, sir, it was my intention for Rinehart & Dennis Co. to get that money.”
McArthur afterwards by letter to W. H. Rouse, dated August 31, 1917, attempted to rescind the order. This letter is as follows:
*569 “Tams, W. Va., 8/31/17.
“Mr. W. H. Rouse,
“Clintwood, Va.
“Dear Sir:
“I hereby rescind the order for $1,200, given you sometime ago in favor of Rinehart & Dennis Company. We are to have a settlement for work done by M. T. McArthur & Company, Dickenson county, and I do not want this money paid them.- Shall ask that you have the clerk of the court forward it to J. R. Simmonds, Johnson City, Tenn.
“Yours very truly,
“M. T. McArthur.”
At the time this order was given McArthur was personally indebted to Rinehart & Dennis Company in the sum of $2,500, for a note paid for him, and the latter firm also claimed a large sum of the firm of M. T. McArthur & Company. The note has since been reduced by payments to about $940, and McArthur claims that, upon a fair settlement, he does not now owe Rinehart & Dennis Company anything on the note or otherwise, and that, on the contrary, they are indebted to him.
The order was given as a security, in part, for an existing debt. It was, therefore, founded upon a valuable consideration, and it is immaterial that the beneficiary did not know of it, when given. The subsequent acceptance of it related back to the time it was given. Evans, Trustee, v. Greenhow, 15 Gratt. (56 Va.) 153. In fact, however, the order to Rouse was requested, by letter from Rinehart & Dennis Company, dated October 11, 1915, and was actually given October 15, 1915, and was accepted not later than October 30, 1915. This order thus given and accepted McArthur subsequently, on August 31, 1917, attempted to revoke by a letter to Rouse whom he discharged as counsel, and he now claims that the fund belongs to him.
While the $1,200 was on deposit with the clerk, Mc
In that case Patterson, a contractor for work to be done for the city of Roanoke, conveyed all funds coming to him from the city to a trust company, and the latter promised the Roanoke Brick Company that it would pay, until further notice, for bricks furnished to Patterson as and when the money therefor was received by it from the city. All that was decided on this point was that this promise of the trust company did not constitute an equitable assignment of any part of the funds in the hands of the trust company. The reasons for the conclusion reached are well expressed by Riely, J., as follows: “Patterson gave no order to the brick company on the city of Roanoke, which was to become his debtor for the construction of the sewers, for the latter to pay to the former for the brick it furnished to him. He did not assign or transfer to it for such purpose ¡any part of the fund thus to become due to him. The agreement, upon which it relies for the creation of an equitable lien in its favor on the said fund, is a mere agreement and promise by the Fidelity Loan and Trust Company to pay, when and as it collects from the city the money it would owe Patter
In the instant case the facts are entirely different. .The order is given directly by McArthur himself and he dedicates the entire fund to a particular purpose. He states explicitly that it was his intention at the timé the order was given that the money should be paid to Rinehart & Dennis Company; that he parted with the ownership of the $1,200 and intended that Rinehart & Dennis Company should get it. Upon principle, and upon the .authorities cited, such dedication constituted a valid equitable assignment of the fund, although the order was directed to Rouse, the attorney of both parties, and who was expected to collect the fund, and not to the clerk who had actual custody of it. The assignment, being ,a. security for an existing debt, was founded on a valuable consideration, and its acceptance will be presumed until the contrary appears. Evans, Trustee, v. Greenhow, 15 Gratt. (56 Va.) 153, 156. Such an assignment is irrevocable by the assignor.
It has been earnestly insisted that the language- used in the order renders the assignment conditional and that in order to constitute a valid equitable assignment “the order must be unconditional.” There was no condition about the
Finally, it is said that the decree in the Bucyrus Case renders the matter in controversy res judicata, as the order to. Rouse was given nearly two years before that decree was entered and.both Rouse and Rinehart & Dennis Company were parties to that suit. This cannot be true. What is not within the pleadings cannot be adjudged. Courts cannot go outside the record and decide issues not made by the pleadings. The record in the Bucyrus Case presented no controversy between the plaintiff in error and the defendant in error over the fund in dispute, so far as is disclosed by the record in this case, and the decree directing the clerk to pay the money to the defendant in error left the rights of these parties inter sese just where it found them. Tarter v. Wilson, 95 Va. 19, 27 S. E. 818; Kelly v. Hamblen, 98 Va. 383, 36 S. E. 491. For cases in other jurisdictions, see 24 Am. & Eng. Enc. Law (2d ed.), 775.
It is stated In the brief for the defendant in error that the decree directing the fund to be paid to the defendant in error was entered by consent, but we are unable to verify that statement from the record in this cause.
For the reasons hereinbefore given the judgment' of the circuit court must be reversed, and this court proceeding to enter such judgment as the circuit court should have en
Reversed.
Concurrence Opinion
concurring:
I concur in the opinion delivered by Judge Burks. I wish, however, to add the following:
I think if the note paid for McArthur by Rinehart & Dennis Company, Inc., for $2,500, which to the extent of $1,200, was the consideration which supported the equitable assignment involved in the case, and which consideration existed at the time such assignment was made, had been paid and satisfied in full before the $1,200 covered by said assignment became 'payable, then, in equity, McArthur would have had the right thereupon or thereafter to revoke said assignment. For the assignment, being made to secure the payment of a debt, itself created a contract between the assignor and assignee which -was executory until the money payable thereunder was in fact paid to the assignee. And it was essential to the continued validity of the assignment, after the attempted revocation thereof by his assignor, that the original valuable consideration therefor should have continued to exist at the time the assignee demanded the payment of the money thereunder.
On the question as to whether said consideration continued to exist at the time the assignee, Rinehart & Dennis Company, Inc., demanded the payment of the money thereunder, the record presents the following situation:
The testimony for said assignee is distinct and positive that such consideration so continued to exist, and that a further indebtedness, indeed, existed of McArthur to such assignee, to the aggregate amount of some $30,000. This testimony was not given ore tenus before the court below,
' The testimony of McArthur was given ore tenus before the court below and'on the subject under consideration, and while he testified- that he had, after giving said assignment and before his attempted revocation of it, paid on said $2,500 note and reduced the principal thereof to “nine hundred and forty odd dollars,” he 'admitted that the balance still left unpaid and owing thereon “with interest, might bring it Into the neighborhood of $1,100 or $1,200.” There is, therefore, no real conflict between the evidence for said assignor and said assignee as to the .continued existence of the original consideration for said assignment to the extent of said $1,200 thereof at the time the payment of the money thereunder was demanded by the assignee.
The only conflict between the -testimony for said assignee and that of said assignor with respect to the indebtedness of the latter to the former is this: The testimony for the assignee is, as aforesaid, that McArthur owed it a total amount of some $30,000 as of the time the depositions aforesaid were taken, to-wit, on November 2, 1917; whereas McArthur, testifying on November 17, 1917, as aforesaid, stated, in substance, that he owed said assignee only about $1,200, the balance on said note as aforesaid; that that was the only debt he owed said assignee as he supposed—(as “I suppose,” to use the language of the witness)—-'and-that if there was any other indebtedness to such assignee it was not an indebtedness of his, but “if it is” (an indebtedness of) “anybody it is M. T. McArthur & Company” (to again use the language of the witness). M. T. McArthur & Company was a partnership in which the witness claimed to have an interest: McArthur admits that in May, 1914, M. T. McArthur & Company owed Rinehart & Dennis Company, Inc., $32,000, according to a statement then rendered by the .latter. He testified that there were subsequent transactions
Therefore, it cannot be said that such testimony of McArthur although heard ore temes by the court below, and
For the foregoing reasons, in addition to those set forth in the opinion of Judge Burks, I am of opinion to reverse the judgment of the court below and to enter judgment for the said assignee.
