Spang v. Robinson

Green, Judge. The determination of this case depends on the true meaning of chapter 188 of the Code of Virginia (see edition of 1860 p. 777) as to the power of the commissioner to compel a judgment-debtor, who in answer to interrogatories has stated that he owned a chose in action, to assign it by a written assignment under his hand and seal to the sheriff of the county, in whose hands is the fieri facias, in trust for the use of the plaintiff in such execution to the extent of his judgment, interest and costs, the residue of the moneys arising from the chose action when collected by the sheriff to be paid to the debtor, who executed such assignment under seal. This chapter 188 of Code of 1860 has in all material respects so far as it affects this cause remained in force — 332 — from 1849 to the present time both in Virginia and in West Virginia, being substantially the same in these respects as chapter 141 of the Code of West Virginia; and the members of the bar in both States are familiar with the mode of proceeding thereunder. It is explained by Professor Minor in the first edition of his Institutes on pages 842 and 843 of vol. 4. The object of filing the interrogatories to the debtor under section 5 of chapter 188 of Code of Virginia or section 4 of chapter 141 of Code of West Virginia is stated on the face of these sections: “To ascertain the estate, on which a writ of fieri facias is a lien, and to ascertain any real estate in or out of this State, to which a debtor named in such fieri facias is entitled.” When such real and personal estate including choses in action have been discovered by answers to such interrogatories, inasmuch as the creditor can have no means of enforcing his judgment in this State against the lands of the debtor in other States, unless the creditor make a conveyance thereof for his benefit, § 6 of ch. 188 of Code of Va. of 1860 or §5 of ch. 141 of Code of W. Va. provides, that such debtor may be compelled to convey said land to the officer, in whose hands the fieri facias has been or is; and if he refuses to make such conveyance, ho. can be imprisoned till he does make such conveyance. But there exists no necessity' for 'permitting or allowing such commissioner to compel the debtor to convey or assign either personal property or choses in action, as this chapter provides for the creditor other and simpler modes of getting such personal property appropriated to the payment of his execution; and such choses in action as to visible personal property and bank-notes or money were to be delivered to the same officer who had held or still held such fieri facias ; or as that might be troublesome, when such . visible personal property' was in a remote part of the State, the commissioner might order it to be delivered to some other officer and might proscribe the manner" of it delivery; and all this he could compel the debtor to do by imprisonment, if necessary. When thus delivered the court might order the property to be sold under an order of the court and proper application of the proceeds to be made See sec. 9 of ch. 188 of Code of Va. of 1860 or sec. 8 of ch. 141 of Code — 333 — of W. Va. Provision is likewise made for the sale and disposition of the proceeds of real estate lying out of the State, which has been so conveyed by the debtor. Ho provision is made for the enforcement of the sale of the land in the State. The primary object of this mode of proceeding being simply to discover on what property the fieri facias was a lien. "When this was done, except in cases where the general law furnished no sufficient remedy to the plaintiff in the execution, no remedy was specially provided for him in this chapter; and therefore as the law provided proper modes for subjecting real estate lying in this State to the payment ot a judgment, when the answers to the interrogatories discovered that the debtor owned real estate in the State, the plaintiff was left to enforce his judgment against it by a writ of elegit, while it was in force, or by a suit in chancery since its abolition. ' If the defendant in the execution in his answers to the interrogatories disclosed that he had evidences of debt or other choses in action, what was it the duty of the commissioner to do in regard to them? The answer under section 6 of chapter 188 of Code of Virginia of 1860 or section 5 of chapter 141 of Code of West Virginia is clear. He should order them to be delivered by the debtor to the sheriff or other officer just as any other personal property was to be delivered; and he might, as in the case of visible property, compel-the delivery of such evidences of debt, bonds, notes or even open accounts by imprisonment of the debtor, if necessary. But it seems to me obvious, that he could ñot compel such debtor to assign either by a writing not under seal or by a writing-under seal or by an endorsement of any such bond or note or in any other manner such chose in action to such officer. The delivery of such bond, note or open account was not intended to transfer such chose in action to the officer but was intended simply to confer on him an authority for sixty days to collect such chose in action. Or more properly speaking it was intended to authorize the person, who owed the debtor as shown by such chose in action, to pay it to the sheriff or other officer for a period of sixty days and only for that period, for at the end of sixty days the sheriff or other officer was and is bound to return such chose in action, evidence of debt or other security, which may remain in his — 334 — hands, to the clerk’s office of the court, from which the fieri facias issued. This appears to me to be clearly the true meaning to he deduced from sections 8 and 10 of chapter 188 of Code of 1860 and sections 5 and 9 of chapter 141 of Code of West Virginia. When this chose in action was returned to the clerk’s office in sixty days, he having no title to it by assignment or otherwise and having no authority to collect it an}7 longer, the creditor’s mode of collecting it is clearly pointed out ar.d provided for in sections 11 and 15 of chapter 188 of Code of Virginia of 1860 and in sections 10 and 14 of chapter 141 of Code of West Virginia. But as certain property, to which a debtor had a claim, or certain dioses in action could not bo appropriately enforced by these proceedings by suggestion, section 16 of chapter 188 of Code of Virginia of 1860 and section 15 of chapter 141 of Code of West Virginia provide for the recovery of such choses in action and such personal property by fhe appropriate suits in law or in equity. Chapter 188 of Code of Va. of 1860 and chapter 141 ot Code of W. Va., were intended obviously not to confer any new rights on the execution-creditor, except in the single case, where the debtor’s land lay .out of the State, but was intended simply to enable him to compel the execution-debtor to discover on oath what the creditor had a lien upon, and then to permit him to enforce his lien in modes provided by the common law or by statute. But it was not intended by this act to authorize the commissioner to compel the debtor under the penalty of imprisonment to execute any assignment or paper of any sort conferring new rights upon the creditor, except in the single case where he had lands outside of the State, which the commissioner might compel him to convey. The commissioner therefore in this case had no right to compel Jas. H. Robinson to execute the assignment under seal dated September 28, 1867, to the sheriff of Ohio county conveying “all his right, title and interest in and to the claim which he had against Wm. T. Robinson, deceased, as per his answer'to the second interrogatory,” which was that he had “a demand against the estate of Wm. T. Robinson, which is for money loaned him in his lifetime and for his liabilities — 335 — assumed by James II. Robinson to tlie amount oí thirty-two thousand and fifteen dollars and forty-five cents.” This assignment states on its face that it was to secure Spang & Co. the payment of their judgment against Jas. II. Robinson with interest thereon and costs of suit. That the assignment was made under duress, appears on the face of the commissioner’s report filed with the petition of Spang & Co. For it says: “Said James II. Robinson appeared as required (to answer the interrogatories propounded) and failing to make conveyance of his property as required by law, which property is specified in his answers to said interrogatories (which answers showed he had no real estate out of this State), your commissioner therefore issued a writ to the sheriff of Ohio county, hereto annexed, commanding said defendant’s arrest till conveyance as aforesaid should be made. Thereupon said defendant made said conveyance as annexed hereto; and a writ of release was issued by me the commissioner.” This conveyance referred to is this assignment; and it was evidently made, while James II. Robinson was falsely imprisoned to compel snch conveyance, and of course was made under duress. It is claimed, that though executed under duress it was not void but only voidable, and it was afterwards voluntarily confirmed. We deem it unnecessary to consider whether this assignment was absolutely void or only' voidable and capable of confirmation subsequently; for in point of fact it never was confirmed. The amended petition of Spang & Co. was, I suppose, designed to allege that this assignment was afterwards confirmed; if we admitthatit did so allege, the answer of James EL Robinson was certainly a positive denial of such affirmation. But one deposition was taken to prove this confirmation ; and it wholly fails to do so. It is the deposition of George B. Caldwell. lie proves only that on February 10, 1868, his father as attorney for the plaintiffs in four judgments, which had been obtained by different parties against James II. Robinson, issued four several suggestions, that Lamb & Paul had funds in their hands belonging to James H. Robinson; that one of these four suggestions was upon the fieri facias sued out of the clerk’s office of the circuit court of Ohio county by Spang & Co. against James II. Rob — 336 — inson tor one hundred ancl six dollars and twenty-nine cents with interest thereon from November 30, 1853, till paid and seventeen dollars and forty-eight cents costs. On the back of the summons to Paul & Lamb on the suggestion were receipts by the sheriff, clerk and commissioner for costs in this case received of Alfred Caldwell amounting in all to ten dollars and nineteen cents. There was no other endorsement on this summons. But on another were the names of the plaintiffs in the judgments, on which thdse suggestions issued, and opposite. each name the amount of the several judgments and costs and then these words, “ costs of suggestion in Spang Co. & v. James H. Robinson six dollars and fifty cents.” And these four amounts were added together making an aggregate of nine hundred and forty-one dollars and eighty cents. G. B. Caldwell proves, that this endorsement was made in violet ink in the hand-writing of Lamb, which he knew well. Lamb is living, but his deposition was not taken, George B. Caldwell testifying that he could remember nothing of the transaction; and the other member of the firm of Paul & Lamb was dead. Admitting that this with other matters deposed to prove that Lamb & Paul out of the funds in their hands belonging to James II. Robinson paid off the three other judgments of other parties, on which these summons to answer suggestions' issued, and that he paid on this judgment in favor of Spang & Co. only the costs of the suggestion, this certainly would not tend in the least to prove that James II. Robinson confirmed this assignment of an entirely different claim 'made about a year before to the sheriff of Ohio, county to satisfy this judgment of Spang & Co. On the contrary it looks very much as if Alfred Caldwell, the attorney of Spang & Co., knew that the proper way of getting payment of this judgment of Spang & Co. out of the dioses in action of the debtor, James II. Robinson, was by issuing summons on suggestions as provided by the statute. But it is attempted to be helped out in the deposition of George B. Caldwell by his saying: “At that time Alfred Caldwell, deceased, told me, that Mr. James H. Robinson had asked him not to require him to pay the whole of the said four judgments out of the money in the hands of Lamb & Paul; and Alfred Caldwell, deceased, — 337 — had upon such representation by Robinson agreed to receive the amount of the other three judgments, interest and costs, and the cost of the suggestion in the case of Spang & Co. from Lamb & Paul and dismiss the suggestion for the money due to Spang & Co., until it should he realized in the cause of James H. Robinson v. Elijah Day, administrator, et al.” And he adds, “I find by the record, that on March 3, 1878, on the motion of the plaintiffs these four suggestions were dismissed.” The stating of this conversation by the witness with his father, Alfred Caldwell, was objected to by the counsel for James H. Robinson; and as a matter of course it was not evidence, being mere hearsay. But if it had been deposed to by Alfred Caldwell, it would not even tend to show that James H. Robinson had confirmed this assignment made to the sheriff about a year before, or that either party thought of it. The natural inference would be that if necessary Spang & Co., by their counsel, Alfred Caldwell, expected to make this money, out of the fund coming to James H. Robinson in this last named cause by suggestion, if he did not pay it as he promised to do. The only other evidence offered to prove a confirmation of this assignment by James H. Robinson was the statement of the witness that he never at any time intimated to the witness his unwillingness to pay Spang & Co. out of whatever he might recover in his suit against James H. Robinson’s estate, though he was his counsel in that case. This surely does not even tend to prove that Robinson ever confirmed this assignment. It seems to show rather that, so far as is known, Robinson said nothing about it and was never called upon to say anything about it. If indeed it had been proved, which it has not, that he did expect to pay off this judgment of Spang & Co.’s out of this claim against the estate of W. T. Robinson, it would amount to nothing as a confirmation of this assignment to the sheriff. I am therefore of opinion, that it is clear, 'that the appellant had no claim, which can be based on this assignment of James II. Robinson to the sheriff. It seems to be idle to refer to authorities to show that the assignment was made under duress and was not binding on James H. Robinson. But I may refer to what is said in Porter v. Daniels, 11 W. Va. 253-4, and the various — 338 — authorities there referred to, which establish, that bonds therein mentioned were invalid because “executed to avoid imprisonment by the officers or other penalties to which the party was not legally liable.” The only question remaining to be considered is: Was the lien on all the dioses in action of the debtor, James H. Robinson, created by the last execution returned on February 25, 1868, barred when this proceeding, which may bo regarded as a proceeding to enforce such lien, was instituted. It was clearly barred, if section 3 of chapter 141 of Code of W. Va. applies to judgments rendered before this Code went into effect. For its language is: “The lieu required under the preceding-section” (which is precisely the same as the like section in the Code of 1849) “shall cease whenever the right of the judgment-creditor to levy the writ of fieri facias, under which said lien arises, or to levy a new execution, or his judgment ceases or is suspended by an undertaking being given and forfeited or by an appeal or otherwise.” The only change in this section from that in the Code of Virginia is that the words “or otherwise” are substituted for “or other legal process.” But this, as is shown in the case of Werdenbaugh v. Reid et al., 20 W. Va. 599, is a most important change. “By this third section of chapter 141 of Code of W. Va. the lien of a fieri facias ceases, wdienever the right to levy any execution, which may be sued out on the same judgment, ceases, and the right to levy cannot exist after the right to sue out a scire facias on the judgment is barred. . This bar is fixed by sections 11 and 12 of chapter 139 of the Code of 1869 at ten years, when no execution has ever been issued on the judgment; consequently the right to levy any execution in such case must cease after ten years from the date of the judgment, and by the statute the lien of a fieri facias must cease at the same time.” The above is a quotation from the above case in 20 W. Va. 599, which was maturely and carefully considered by the Court, and which I am disposed to follow without going over the grounds we then went over. In this case executions did issue.; and the limitation of time fixed for the issuing of other executions in this case is fixed by section 11 of chapter 139 of Code of W. Va., which — 339 — declares:' “Wheh execution has issued, other executions may he issued on such judgment without notice within ten years irom the return day of thelast execution issued thereon, on which there is no return by an officer, or which has been returned unsatisfied.” Of course under this section no execution could have issued on the judgment in this ease, when these proceedings were commenced, as nearly fourteen years had elapsed since the return of the last execution unsatisfied. But it is insisted that these provisions of the Code of "West Virginia do not apply to any case, when the judgment was rendered before the Code of West Virginia took effect. It cannot be disputed that these provisions in the Code of West Virginia do apply to judgments rendered before the Code went into effect, if it clearly appears from the Code of West Virginia, that th.e Legislature intended them -to apply to cases of judgments rendered before the passage of the Code of West Virginia. The Code of 1849' gave the plaintiff twenty years from the return day, on which there was a return by the sheriff, in which to issue another execution. Row the Legislature has the constitutional right to reduce this time not only in reference to future but also in reference to past judgments. This is undisputed. See Huffman v. Alderson, 9 W. Va. 624. Row in this case the Legislature has clearly shown, that it intended to reduce the time, in which execution should be issued, when another execution had been returned unsatisfied, from twenty to ten years, and intended to apply this to judgments rendered before the Code of West Virginia took effect, as well as to those rendered after. This is shown beyond doubt by section 12 of chapter 189 of Code of W. Va. which provides that “no execution shall issue on any judgment in this State after the time prescribed by the preceding section” (from which we quoted above) “except that in computing the time the period mentioned in section 4 of chapter 136 shall be omitted.” The time is from April 17, 1861, to March 10, 1865. Of course therefore these provsions of the court were necessarily intended to be applied to judgments rendered before the passage of the Code and' even to judgments rendered before the war. Clearly therefore no execution could be issued on this judgment of Spang & Co. v. James M. — 340 — Robinson, when these proceeding were instituted, as nearly fourteen years had elapsed since the return of the last execution, whereas the limit fixed by the law applicable to this judgment was ten years after the return of the last execution. This being settled section 3 of chapter 141 of the Code, which we have quoted, expressly declares that the lien otthis fieri facias on this judgment ceased, when the right to levy a new execution ceased in any manner; and it ceased of course, when no new execution could be sued out, that is some four years before the appellant commenced these proceedings to enforce the lien created by these fieri facias. These principles, as I understand them, were the basis of the decision by this Court in Werdenbaugh v. Reid, 20 W. Va. 588. These provisions of the Code were then applied to a ease, in which the judgments were rendered long before the Code went into effect; and I really do not regard this as now an open question in this State. But as the counsel do not seem to regard it as closed by this decision of Werdenbaugh v. Reid, I have thought proper to make the remarks I have. The bar of the statute of limitations relied upon in the defendant, Robinson’s, answer is a complete bar to any recovery, if the plaintiff can be regarded as basing his claim on the lien created by the fieri facias he had issued on his judgment against Robinson; and if his case is rested, as by the pleadings it seems to be, on the assignment for the use of the appellant executed by Robinson to the sheriff of Ohio county, it is of no avail, as it was procured by duress and has never been confirmed, if indeed it could be. The natural conclusion from this would be that the final decree of the circuit court appealed from should be affirmed, and that the appellee should recover of the appellant his costs in this Court expended and thirty dollars damages. But there are in this case certain peculiar circumstances, which would render such a decree unjust to the appellant. When he had the record copied, he had copied as a jiart of it a part of the record in the old suit of James H. Robinson v. E. Day, administrator of W. T. Robinson et al., amounting to about two hundred and twenty manuscript pages, and of these there was no sort of necessity to copy into the record more than a small part of the last decree rendered in said — 341 — cause on .February 9, 1882, and referred to in the appellant’s petition. But after the record in this case was copied, including this large amount of matter taken from this old suit and throwing no sort of light upon the question involved in this suit, the counsel for the appellant notified the counsel for the appellee that he had omitted certain portions of this record of this old suit and that he would present the record, as it had been made out. The appellee’s counsel then notified the appellant’s counsel, that he regarded much of the record, as it had been made out under the direction of the appellant’s counsel, “as not material to the determination of the questions involved in the appeal about to be applied for, but if such portions are to be presented to the Supreme Court of Appeals, it will be material to have before that Court certain additional portions of said record,” which he then specified, extending over about one hundred and fifty pages of the manuscript record; and accordingly thé appel-'laut’s counsel directed the clerk to copy these one hundred and fifty additional pages. They were as utterly useless and immaterial as the two hundred and twenty pages of immaterial matter which the appellant’s counsel had inserted. Thus ■this record contains three hundred and seventy manuscript pages of unnecessary and improper matter. The appellant has been charged with the copying and printing of all this useless matter, none of which has this Court, read or considered. . The whole record in this case, including everything which is at all pertinent, would uot exceed one hundred and eighty-five manuscript pages; but as presented to us it contained four hundred and fifty-five manuscript pages. Now while this Court leaves it in a great measure to counsel to determine, what portion of the record has any pertinency to the matter to be brought before us on an appeal, and never has required in the taxing of the costs any part of the actual costs to be omitted, nor varied its judgment or decree because of any unnecessary matter brought into the record, yet in this case it is so apparent that all the matter, which we have spoken of, was utterly impertinent, and as a result of this the appellant because of his own fault has paid a large amount of unnecessary costs; yet this amount has without the least necessity been largely increased by the appellee’s — 342 — requiring one hundred and fifty pages of manuscript matter to be copied and printed by the appellant, and he has thus increased through this fault of the appellee’s counsel an expense exceeding thirty dollars damages usually allowed the appellee, when a decree is affirmed in such a case as this. Under these circumstances, I think, justice to the appellant requires, that instead of awarding as damages to the appellee the usual sum of thirty dollars damages, we should allow him only one cent damages and his costs in this Court. In so doing the appellant will bear the largest portion of the expenses unnecessarily incurred in this cause, which' is but right, as he was the first and principal offender in this matter. But the appellee’s counsel, who is also in fault though in a less degree, will be made in effect to bear a portion.of these useless expenses, as I think- he should be, because much blame attaches to him for the incurring of a portion of these utterly useless costs. In the argument before this Court the appellant insists on the pertinency of these .two’ hundred and twenty pages of manuscript taken from the old suit, which he had copied into' the record, becausein his judgment it shows, that the appellee had acted dishonestly in other matters in no manner connected with the subject-matter of controversy in this appeal, from which he draws the conclusion, that ho had a dishonest character. Evidence of his dishonest character in other transactions could not as a matter of course be used against him in this cause for the most obvious of reasons, that, if this was allowed, the Court would be required in each case to determine, whether he had acted dishonestly in these other transactions, and this would render it necessary in the decision of one case to investigate and decide innumerable other cases; for without so doing we could not know, whether the party had acted dishonestly in these other transactions. They were res inter alios acta and not to bo regarded as evidence. Moreover, as the opinion I have expressed shows, that the case before us involved only the decisions of more questions of law and depended in no degree upon the question, whether the appellee, James II. Robinson, was or was not an honest man, there was no excuse for the appellant introducing the immense quantity of evidence taken from another suit — 343 — to-prove, that he was a dishonest man. Still more clearly was all this matter of such a character, that it could not be read by this Court, inasmuch as it appeared that Spang & Co. were not parties to the suit, from which all this immaterial matter was copied by the appellant’s counsel into the record of this ease. The appellee’s counsel justifies his course in introducing this large amount of immaterial matter into the record as necessary in order to rebut the proof of the dishonesty of his client,- which might be contained in that pai-t of the record copied by the appellant. Now these matters, which the appellant’s counsel had copied into the record were obviously so utterly immaterial, that the appellee’s counsel, it seems to me, could not but knovj that they would be neither read nor considered by this -Court; and there was therefore no sort of necessity or propriety in rebutting them in any way, much less by the copying into the record a great mass of immaterial .matter, which appellee’s counsel, if he thought at all, must have known that this Court would neither read nor consider. It is true the judge, who granted this appeal, was compelled to read this mass of useless matter, for, as it preceded the record proper in this case, he could not, till he had read it at least in part, know that it really had nothing to do with the appeal asked for but would naturally take it for granted it had. The appellee’s counsel cannot therefore be excused for requiring those one hundred and fifty manuscript pages to be copied into the record, they being so obviously immaterial, and therefore, as the appellant has by reason of this had to pay a large amount of costs unnecessarily, he ought not to be required to pay the usual damages of thirty dollars, and instead of thirty dollars the appellee in this cause should be awarded one cent damages and his costs. • . The decree of the circuit court of May 14, 1883, must be affirmed; and the appellee must recover of the appellant his costs in this Court expended and one cent damages. Affirmed.