Scott v. Ludington

JOHNSON, Judge, delivered the opinion of the Court: The first objection to the decree is, that the cause was not properly matured for hearing, because the order of publication as to the absent defendants was not duly executed; that no affidavit was made before it was issued. In Gibson v. White & Co., 3 Munf. 94, a decree was held erroneous, because it did not appear from the record, nor was it stated in either of the decrees in the cause, that the absent defendant was proceeded against under the statute as an absentee. Where there is a joint decree against two parties, one of whom is an absent defendant and proceeded against by order of publication, and could not therefore appeal, and the decree is erroneous, it will be reversed as to both. Lyman v. Thompson, 11 W. Va. 427. In Hunter v. Spotswood et al., 1 Wash. 145, it did not appear that Campbell, one of the defendants who was an absentee, had been proceeded against by publication. The — 392 — objection was made in the Appellate Court by the othei “defendants; and it was argued that no person could take advantage of the omission bnt Campbell himself, who had not appealed; but the court because of the omission, and for that only, reversed the decree; and the reporter in a note says: “The chancellor having corrected the error by stating in his decree, that evidence of publication was proved to him, the cause went back to the Special Court of Appeals, where the decree was affirmed in toto• Syllabus i. Before a decree will be rendered in a cause, all parties materially interested therein must be before the court, either in person, or they must have been proceeded against by order of publication, if absent defendants, and if as to the absent defendants there has been no order of publication executed, and they were material parties, the decree will be reversed. But if there was no objection syllabus 2; made in the court below as to the manner, in which the order of publication was issued or executed, so as to bring the matter before the inferior court and have the question as to the sufficiency of the order of publication passed upon by that court, and the decree recites, that the order of publication as to the absent defendants, was “duly executed,” the objection, that it was not duly executed, will not be entertained by the Appellate Court. In Craigh v. Sebrell, 9 Gratt. 131, the decree states, that “the cause was heard on the bill &c., and the order of publication returned duly executed.” Lee, J. says: “Thus it must be inferred, that the manner of proceeding against the non-resident, Price, was in the mind of the chancellor and the subject of his consideration, at the time he pronounced his decree; and that decree must be regarded as solemnly affirming, that there was an order of publication duly taken against Price, and that it was duly published and posted as the law directs ; otherwise it could in no sense be said to have been duly executed; and the verity of the record upon this point is not to be called in question by any averment or proof to the contrary.” See also Moore et al. v. Holt, 10 Gratt. 284. — 393 — It is true that in Steele v. Harkness, 9 W. Va. 13, the decree was reversed because the order of publication was defective ; but in that case, the decree did not recite, that it was “duly executed,” and the absent defendant, by counsel, appeared in court and objected to its suffici-cency; and the matter was passed upon by the inferior court. It is also objected, that Jesse Jones, the assignor of J. W. Jones, in whose tavor a debt is decreed against the defendant, Ludington, is not a party to the suit; and that there is no such judgment as described in the answer of J. W. Jones. If the assignment purports to transfer the whole interest syllabus», of the assignor, and there is nothing in the pleadings and proofs to induce the belief, that it did not really do so, the assignor is not a necessary party to the suit. Littlejohn v. Ferguson 18 Gratt. 53; Omohundro v. Henson et al., 26 Gratt. 511; Batesville Institute v. Kauffman, 18 Wall. 151. There is absolutely nothing in the pleadings and proofs in this cause to show that Jesse Jones had not parted with his entire interest in the claim. The judgment ivas recovered in his name for the use, of J. W. Jones. There is nothing in the objection, that there is no such judgment as is described in the answer of J. W. Jones. The answer describes the judgment precisely as it is reported by the commissioner, with the exception that it does not state that it was recovered in the name of Jesse Jones for the use of the respondent. It is clearly the same judgment. It is objected, that the supplemental commissioner’s report was made at the request of plaintiffs’ attorney, Syllatas4 without an order of court, and without notice to any one; that both the original and supplemental reports were made before the amended bill was filed or process executed upon any of the defendants therein, yet each of the reports allows debts in favor of persons, who were made — 394 — parties by the amended bill, and who were not parties at the time the reports were made and returned. It appears from the record, that all the said parties were before the court, and had been for some time, when the decree was pronounced, and no one objected or excepted to either of said reports. The supplemental report shows judgments that had been recovered since the filing of the original report. No exceptions having been made in the court below to the supplemental report, and no error appearing on the face thereof, the Appellate Court will not look into it, and the parties to the suit in the absence of any exception thereto must be deemed to have acquiesced therein. It is further insisted, that the court erred in decreeing Syiiatas s. -n favor of plaintiff’s j udgment, until a controversy between the assignor of the plaintiff and the defendant, as to an equity of the defendant against the plaintiff’s judgment was settled. The defendant, Ludington, by his answer to the bill claims, that he has an offset to said judgment, because the consideration of the bond, on which it was founded, in part failed, and that he had, in another case in the circuit court of Greenbrier county, asked the court to enjoin the collection of the judgment. He also filed an amended answer setting up his defense to the judgment more specifically. The plaintiff filed an amended bill, setting up his version of the matter, and setting up facts, that would show, that the defendant, Ludington, was not entitled to any abatement from the judgment, if the facts therein stated were true, and brought all the parties interested therein before the court. The amended bill, was not answered by Ludington at all and by no other defendant controverting the facts therein set forth. The cause was heard upon the original • and amended bills, the answer and amended answer of I*ud-inglon.tothe original bill, with general replication thereto, &c. He exhibited no proof whatever of his averments in his answers, and confessed the amended bill. He cannot here, under these circumstances, be — 395 — beard to complain of the decree, because there was no credit allowed upon said judgment. He *did not show" himself entitled to any ; and the court went farther than it was required to go, when it prevented a sale from being made, until the plaintiff would indemnify the defendant, Ludington, on account of such failure of consideration, if any, in the bond upon which the judgment was founded. It is further alleged, that the court erred, in decreeing the lands to be sold to pay all the judgment liens upon syiiainis«. it, instead of selling it to pay the judgment of plaintiff subject to prior liens. It has been held by this Court that it would be error to sell subject to prior encumbrances. Laidley v. Henchman, 3 W. Va. 423. It was also held to be error in Anderson v. Nagle, 12 Syllabus?. W. Va. 98, to decree a sale of land to pay the judgment of the plaintiff without at the same time providing for the payment of another judgment lien, appearing in the record, although the other lienor did not answer the bill, and was not asking to have the land sold to pay his judgment. It has been again and again held by the Court of Appeals of Virginia and of this State? that real estate should not be sold, until the liens thereon and their priorities are fixed and determined. Why is this? Because if is necessary to thus make the land bring a better price; and also to prevent the debtor from being harrassed with a multiplicity of suits and consequent costs. It would be hard indeed upon the debtor, if every judgment creditor could'involve'him in costs, and by selling his property subject to prior liens, sacrifice it; and it would be equally unjust to subsequent lienors, because they would be compelled to either purchase the property, or lose their liens. It is also insisted, that the court erred, in its decree, in reserving to the plaintiff the right “to apply for further Sy]lalmsS relief, should it be made to appear, that his judgment should not be reduced by the judgment against W. II. Scott for $37.21 with interest and cost.” This reduction — 396 — was ma<3e by the commissioner, and the court should not have provided*for granting any further relief to plaintiff, because it was its duty, before ordering a sale, to definitely fix the amount to which the plaintiff was entitled. This' it did by confirming the commissioner’s report; and it should not have provided for further relief upon a different state of facts being shown. The decree must be corrected, by striking out that provision, and thus corrected, must be affirmed with costs and damages. The other Judges CoNcurred. Decree Corrected asd AfeirMEd.