Opinion
11-02-1867
JAMES RIVER AND KANAWHA COMPANY v. LITTLEJOHN. LITTLEJOHN v. FERGUSON & als.
1. In a suit in which there is an absent defendant, there is a decree against the home defendant, from which he appeals. Pending the appeal, the absent defendant may file his petition in the court below to be permitted to appear and file his answer in the cause, and may have the decree re-heard and set aside, if it is erroneous as to him.
2. If upon such re-hearing the decree, or so much of it as is the subject of appeal, is wholly set aside, the appeal will generally be dismissed. But if an appeal is taken from the decree on the re-hearing, before the dismissal of the first appeal, the appellate court may refuse to dismiss it.
3. QUÆ RE: Whether the statute limiting the period in which an absent defendant may answer and have the decree corrected, applies to the time of presenting the petition, or of filing the answer, or of the decree upon the re-hearing.
4. What laches of a party in a pending suit will not conclude him.
5. A plaintiff in equity files with his bill, as the ground of his claim, an order on one of the defendants, which has not been accepted. No proof of the execution of the order is given; but its genuineness is not questioned in the court below, and it is made the basis of a decree in favor of the plaintiff. It is too late to make the objection in the appellate court, to the want of proof of the order.
6. The bill having alleged that the order was drawn by one of the defendants, the act, Code ch. 171, § 38, applies, and no proof of the signature is necessary.
7. The written opinion of an attorney of a party, or the recitals in a bond, though the papers are filed with the answer of a defendant, and are not excepted to as evidence, are not competent proof of the facts recited in them against other parties.
8. A commissioner's report is based upon the evidence of papers filed in the cause; and there is no exception to the report. The papers not being competent evidence of the facts recited in them, the court may disregard the report, and decide the case upon the competent testimony, and against the report.
9. R gives to L an order on J, his debtor, for a sum certain; much less than the whole debt; and he gives to F an order on J for the whole balance due from J to R. F's order having been lost, in a controversy between L and F, in the absence of any evidence on the subject, the presumption is that the order in favor of L was first given.
10. To a bill filed by an assignee of a chose in action, if the assignment purports to transfer the whole interest 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.
11. If it appears affirmatively that a person, if made a party, would have been a mere formal party, against whom no decree would have been asked, and whose presence was not necessary for the protection of any of the defendants, the appellate court will not reverse a decree for his absence.
On the 14th of August, 1839, John Littlejohn sued out a subpoena in chancery from the clerk's office of the Circuit Superior Court of Law and Chancery for the county of Henrico and city of Richmond, against J. C. Robinett, William W. Ferguson and the James River and Kanawha Company, returnable to the first Monday in October; which was returned as served on the Company; and that Robinett and Ferguson were not found, and were no inhabitants. At the October rules, Littlejohn filed his bill, in which he alleged, that on the 8th day of February, 1839, J. C. Robinett was indebted to him in the sum of $783.45, and on that day executed to the plaintiff his note for the amount, payable on demand; and at the same time drew an order on the James River and Kanawha Company, who were indebted to him as a contractor on their canal for the amount of the note, with interest from its date; which note and order are made exhibits with the bill. That the order was presented without delay to the Company, but the account of Robinett with the Company not having been finally settled so as to ascertain the precise sum due to him, before the money was paid to the plaintiff another order was presented to the Company from Robinett, in favor of William W. Ferguson, for the full amount of the balance due from the Company to Robinett, which purported to be drawn also on the 8th of February, 1839, and it is alleged was drawn before the order in favor of the plaintiff. And the Company, not denying that they have in their hands funds of Robinett sufficient to pay the order, yet decline to pay the plaintiff, because of the claim set up by Ferguson under the order in his favor.
The bill further charged, that the order in favor of Ferguson was fraudulent, was given at a date subsequent to that of the plaintiff, and as the plaintiff believed and charged, without consideration. And as he has no acceptance of his order by the Company, and has no proof without a discovery from them, of the amount in their hands, and Ferguson is not an inhabitant of the county, the plaintiff is compelled to ask the aid of a court of equity. And making the James River and Kanawha Company and Ferguson parties defendants to the bill, he calls for a full answer from them, and that Ferguson be required to produce his order; that the Company may be required to pay the plaintiff's claim out of the funds of Robinett in their hands; for all necessary accounts; and for general relief.
On the 4th of December, 1849, an affidavit was made before the clerk of the court that Ferguson was not an inhabitant of this commonwealth; and an order of publication was made against him as an absent defendant; and the proof of the publication was filed in December, 1851. In June, 1850, a like order was made against Robinett; and the bill having been taken for confessed in February, 1840, against the James River and Kanawha Company, on the 28th of November, 1851, the cause came on to be heard upon the bill taken for confessed as to all the defendants, including Robinett as one, and the court decreed, that Robinett should pay to the plaintiff the sum of $783.45, with interest from the 8th of February, 1839, until paid, and his costs. And it was further decreed, that the James River and Kanawha Company should render before one of the commissioners of the court an account of the amount which was due, or to become due, from the Company to Robinett on the 22d day of August, 1839, the day when the subpoena instituting this suit was served upon them, with a statement of the claims upon the said amount at that time, and the name or names of the claimants, and the grounds and evidence upon which such claims rested, with any matters specially stated, & c.
In February, 1852, the James River and Kanawha Company, by leave of the court, filed their answer, which is signed and sworn to by John Y. Mason, the then president of the Company. They say, that owing to the death of William B. Chittenden, late Secretary of the Company, in whose charge the papers relating to the matters referred to in the bill were placed, the Company was not able to make a full answer to all the allegations made in the bill. They admit that they were indebted to Robinett, on the 1st of August, 1839, in the sum of $6,599.07; and that no part of that sum had been paid on the 22d of August, 1839. And they say, that the whole of that sum was afterwards, on the 19th of October, 1839, paid to William W. Ferguson. That it was paid on an assignment to him by Robinett of all the money due Robinett by the Company. That the assignment could not be found among the papers preserved in the office of the Company; and owing to the death of the then secretary, they cannot state what had become of it. But they believe it did exist, and for proof refer to four papers filed with the answer. That it may be true that the note and order exhibited with the bill were made by Robinett, but they know nothing, and therefore can form no belief concerning the same. If made by him, they deny that the said order was presented at the office of the Company, or any notice of it given to the Company, previous to the presentation of the order of Ferguson. They deny that the assignment to Ferguson was given without consideration, or that it was executed at a date posterior to the date of the order alleged to have been given to the plaintiff. They do not know the precise date of Ferguson's assignment, but believe it was prior in date to the plaintiff's; and as strong proof thereof, they refer to two of the papers filed with the answer, in which it is referred to as bearing date the 1st of February, 1839, seven days before the date of the said order. And having paid the whole sum due to Robinett on an assignment bearing date prior to the order of the plaintiff, the Company ought not to be compelled to pay it over again.
The papers referred to and filed as exhibits with the foregoing answer are: First--the final estimate for the work done by Robinett, on section 66 of the canal, showing that there was due to him on the 1st of August, 1839, the sum of $6,599.07; and a receipt attached, dated the 15th of October, 1839, of J. C. Robinett, by William W. Ferguson, acknowledging the payment to him of that sum in full of all demands against the Company on account of the work done on that section. Second--a power of attorney from Robinett to Ferguson, dated the 3d of August, 1837, by which Ferguson was authorized to act for him in his absence, sickness or death; and to demand and receive from the James River and Kanawha Company all moneys that might from time to time become due to Robinett under his contract with the Company; and also to demand and receive the final estimate, together with the whole amount of the retained twenty per cent. when the said section should be completed. On this paper is the following endorsement: R. Josiah C. Robinett to William W. Ferguson, 1st February, 1839-- power of attorney and assignment. Third--a bond of indemnity from Ferguson to the Company with two sureties. This bond is dated the 15th of October, 1839, and recites that Robinett did by an instrument in writing, dated on the 1st of February, 1839, transfer and assign the above mentioned moneys to Ferguson, and directed by his written order the said Company to pay said moneys to Ferguson, which order Ferguson had presented and demanded payment; that John Littlejohn claims a part of said money by an assignment from Robinett, and has instituted a suit in chancery against Ferguson, Robinett and the Company, and Ferguson had agreed to indemnify the Company against the claims of Littlejohn, if the money is paid to him. And he binds himself to defend the suit and save the Company harmless. Fourth--the opinion of S. S. Baxter, the attorney for the Company, dated September 13th, 1839, in which he says, he had seen the assignment of Robinett to W. W. Ferguson, and that Ferguson informs him that after this assignment Captain Littlejohn obtained another assignment of part of the same claim. He refers to the fact that Littlejohn had instituted a suit to enforce his claim; but as there is no restraining order, he expresses the opinion, that Ferguson is entitled to the money, and it may be paid to him; but recommends that the Company require indemnity. The Fifth--is a letter from Ferguson to Colonel Thomas M. Bondurant, then a director of the Company. This letter is dated Bent creek, 25th July, 1839, and is directed to Colonel Bondurant, in Buckingham, where he resided. The writer says: I enclose the within paper, signed by J. C. Robinett, by which you will see he has given me a power of attorney to draw his final estimate on station 66 of the James River Canal; also his reserved twenty per cent. You will also find a transfer and assignment of the same; upon which two papers the president and directors will no doubt be safe against him by my receipt for the money due him at this time. He says: I am bound for him to a considerable amount. He requests Colonel Bondurant, if it is too much trouble for him to undertake, to let him know when the next meeting of the board takes place. He wishes the money retained by the board until it can be paid to him.
Commissioner Davis, in March, 1852, made his report. He had no evidence before him but that filed in the cause. He refers to the papers hereinbefore mentioned, and upon the evidence of Mr. Baxter's opinion, and the recitals in the bond, he reports that Ferguson did have an assignment from Robinett of the whole amount due to him by the James River and Kanawha Company; and that this assignment bore date the 1st of February, 1839. He reports that the only claims upon the fund is this assignment to Ferguson and the order in favor of Littlejohn, dated the 8th day of February, 1839, which order did not appear to have been accepted by the Company.
The cause came on to be heard on the 23d day of February, 1853, upon the papers formerly read, the answer of the James River and Kanawha Company, with the replication thereto, and the report of Commissioner Davis, to which there was no exception; when the court being of opinion, that the assignment to Ferguson not being produced, the reference to it in the opinion of Mr. Baxter and in the bond of indemnity, if admissible evidence, was not sufficient to establish the existence and date of the assignment. And being further of opinion, that the order in favor of Littlejohn operated as an assignment of that much due from the Company to Robinett, and that the payment by the Company to Ferguson after notice of that order was illegal and void, it was decreed, that the Company should pay to Littlejohn the principal money, interest and costs decreed against Robinett by the decree of the 28th of November, 1852, viz.: $783.45, with interest thereon from the 8th of February, 1839, until paid, and his costs. From this decree the James River and Kanawha Company obtained an appeal to this court in May, 1853.
On the 12th of November, 1853, Ferguson applied by petition to the circuit court, in which the decree had been rendered, to be permitted to enter his appearance and file his answer, which he tendered. And the court made an order, that his said petition be granted, unless the plaintiff shows cause to the contrary on or before the next term of the court, after being served, himself or his counsel, with a copy of this order. And on the 9th of May, 1859, James Lyons, Esq., as counsel for Littlejohn, acknowledged service of the order.
On the 9th of June, 1866, the court made another decree, that it appearing that the plaintiff, by counsel, has acknowledged service of the decree entered in this case on the 12th of November, 1853, and having failed to show sufficient cause to the contrary, leave is given the defendant, William W. Ferguson, to file the petition and answer mentioned in said decree; to which answer the plaintiff replied generally. And thereupon the cause came on to be heard, & c., and it was decreed, that it be referred to one of the commissioners of the court to ascertain and report whether there was any such assignment as that mentioned in the letter to Colonel Bondurant; whether the letter of Ferguson of the 28th of July, 1839, to Colonel Bondurant, or the assignment referred to therein, was laid before said company, or its duly authorized officer, prior to the 22d day of August, 1839; whether between said dates any meeting of said Company was held, and if held, whether Colonel Bondurant was present; with any matter specially stated deemed pertinent by himself, or which might be required by the parties to be so stated.
On the 10th day of January, 1867, another decree was made, directing the commissioner to enquire and report: First.--Whether the assignment, if any, by Robinett to Ferguson was fair, and made for valuable consideration or not. Second.--If it was fair, and founded on valuable consideration, how far the rights of Ferguson were affected by his failure to give notice to the James River and Kanawha Company of the existence of his order, until after Littlejohn had given notice of the order under which he claims, if such was the fact.
Ferguson, in his petition, set out the grounds on which he asked that he might be admitted a defendant, and that the decree in favor of Littlejohn might be reversed. In his answer, he denied the allegations in the bill as to the date and consideration of the assignment to him. He averred that the assignment was dated on the 1st of February, 1839, and was made on the same day. That the consideration of the assignment was not fraudulent, but was valuable and bona fide. That Robinett was indebted to him at the time for money lent and advanced to him, or paid, laid out and expended for him, and also for certain liabilities which he had incurred for Robinett, as his security and for his benefit. That Robinett was a man of limited means; and to enable him to execute his contract on the canal, had obtained the defendant's aid in supplying him with money, and becoming his security, and in otherwise pledging his credit for his benefit. That from the first time Robinett applied to him for aid as aforesaid, he pledged himself to reimburse the defendant, and make him safe out of the money he was to receive from the Company. That the defendant enclosed the assignment and power of attorney to Colonel Bondurant, filed, as defendant is informed, with the answer of the Company. That this was done to enable Colonel Bondurant to present the defendant's claims to the Company; and he believes it was done. That he believes his claim was not only prior in date to Littlejohn's, but was first presented to the Company.
The defendant insists, that he ought not to be prejudiced by the accidental loss of the assignment by the Company. He avers, that on receiving the money, he applied it to payments due to himself from Robinett, and to payments for which he was liable for him; and took in the bonds and other evidences of debts, and obtained receipts and vouchers for a settlement; and he afterwards had a settlement with Robinett, and considered the transaction entirely ended. The fact that no process had been served upon him, though he lived in Virginia until the year 1843, and the confidence in the superiority of his claim over that of Littlejohn, led him to suppose that the suit had been abandoned, and he was entirely taken by surprise when informed of the decree that had been made in the case.
The defendant further insists, that the laches of the plaintiff in prosecuting his suit should defeat him. That if process had been served upon the defendant during the lifetime of Chittenden, the secretary of the Company, he could have proved his assignment, and the notification of it to the Company. He could also have proved the due application of the money which he received from the Company to the payment of debts due to him from Robinett, or for which he was responsible for him; but that in November, 1844, his house was burnt, and his papers destroyed in the fire, so that he could not now produce his receipts and vouchers. That the negligence and laches in serving the defendant with process was the more reprehensible, as he was in Virginia when the suit was brought, and did not remove from the State until 1843.
Both the petition and the answer was sworn to before a justice of the county of St. Louis, in the State of Missouri. And the plaintiff objected to the answer, because the defendant has not appeared openly in Virginia, but is still a non-resident.
The commissioner returned his report dated February 22d, 1867. His report is based upon the papers in the cause, and a certificate of William P. Munford, the secretary of the James River and Kanawha Company, containing extracts from the record of the proceedings of the Board of Directors. From these it appeared that meetings of the board were held on the 7th, 8th, 9th and 10th of August, 1839, at all of which Colonel Bondurant was present; and at the meeting on the 9th, the record says: Several liens upon the final estimate of J. C. Robinett, on section 66, being exhibited, and the said estimate not being returned, on consideration--ordered: That on the return of said final estimate, payment thereof be withheld by the secretary till further order of the board. On the 16th of September, the order was made directing the payment of the money to Ferguson. Mr. Munford further stated, that he had examined the records of the Company, and had found no reference to the assignment by Robinett to Ferguson of his estimates for work done on section 66. He presumed the endorsement by Mr. Chittenden on the power of attorney was the date at which he received notice of its execution. All the documents of so early a date as the paper in question were destroyed by fire.
The commissioner reported: First.--That there was such an assignment as that mentioned in the letter to Colonel Bondurant. Second.--That the assignment was laid before the Board of Directors of the Company prior to the 22d of August, 1839. Third.--That from the answer of the Company and Ferguson, the assignment was fair, and made for valuable consideration; and there is no affirmative evidence to sustain the charge of fraud. Fourth.--That there was no evidence or grounds to infer that Littlejohn's order was presented to the Company before that of Ferguson. And that the assignment to Ferguson bore date on the 1st of February, 1839. The commissioner further reports, that the receipt of Ferguson to the Company is as attorney for Robinett, under the power of attorney given to him, dated 3d of August, 1837, and purports to be in full of all demands against the Company under or growing out of Robinett's contract with them for the construction of section 66 of their canal, and is signed J. C. Robinett, by William W. Ferguson. And he submits the legal inference from and effect of this receipt to the court.
The plaintiff excepted to the report of the commissioner: First.--Because the report is not only not sustained by the evidence in the cause, but is in direct opposition to it. Second.--Because it is in opposition to the principles of law and practice, well settled in the court of chancery. Third.--That Ferguson having received the money from the Company, as attorney for Robinett, cannot claim to have received and to hold it as creditor.
The cause came on to be finally heard on the 13th of March, 1867, when the court overruled the plaintiff's exceptions to the commissioner's report, and confirmed the report, and decreed, that the decree of the 23d of February, 1853, be set aside; and that the plaintiff's bill be dismissed as to the James River and Kanawha Company and William W. Ferguson, with their costs. From this decree Littlejohn obtained an appeal to this court.
Myers, for the James River and Kanawha Company and Ferguson, insisted:
1st. That Robinett was a necessary party, the plaintiff claiming as his assignee; and though his name is in the subpoena, he was not made a party by the bill.
2d. That the evidence was sufficient, under the circumstances, to sustain Ferguson's claim under the assignment to him. Or, if it was not sufficient to satisfy the conscience of the chancellor, it was at least of such a character that the court should not have decided against it without ordering an issue before a jury; and this especially as both commissioners had, by their reports, given Ferguson priority over Littlejohn; and Davis' report had not been excepted to.
3d. That the court erred in its first decree in treating Littlejohn's claim as fully proved by the note and order which he filed. The James River and Kanawha Company make no admission that these papers were made by Robinett; but they put the plaintiff on strict proof. And the proceeding being against Robinett and Ferguson as absent defendants, the law requires that proof shall be taken of the plaintiff's demand. See Tate's Dig. p. 58, 59, § 2. It was moreover necessary that the plaintiff should prove that his order was the first presented or notified to the Company. 2 Story's Equ. Jur. § 1035a; § 1047, § 1057; Lewin on Trusts 604, 615; Judson v. Corcoran, 17 How. U.S. R. 612; Moore's ex'or v. Holcombe, 3 Leigh 597.
4th. The application by Ferguson to be permitted to file his answer and show error in the decree in favor of Littlejohn is under the act, Code ch. 171, § 13, p. 645. This act makes no reference to the case of an appeal, and there is no exception in the statute, whilst the reasons apply just as forcibly to a case where there has been an appeal by another party as where no appeal has been taken. He referred to Newcomb v. Drummond, 4 Leigh 57. That was a case inter partes; and the reason is stronger in this case, in which Ferguson was no party in the appeal. The cases cited by the counsel on the other side have reference to the distinction between interlocutory and final decrees.
5th. Ferguson presented his petition to the court in the same year in which the decree was made, and the court then made the order allowing him to appear and answer, unless the plaintiff should show cause against it. This was the commencement of the proceeding, and therefore was not barred by the statute.
6th. The objection to the answer on the ground that Ferguson did not appear openly in the State is based upon the idea that the provision of the act in relation to foreign attachments applies to this case. The Code of 1860, p. 651, § 7, relates to attachments; but here the proceeding is not under that act, but under the act in relation to absent defendants.
7th. Ferguson is not estopped by the form of his receipt. He is shown to have been using his utmost exertions to get the money for himself. And the Company and the plaintiff understood him to claim it as assignee.
Lyons, for Littlejohn, insisted:
1st. Robinett was not a necessary party. That in a suit by an assignee against the debtor, if the assignment is of the whole interest, and there is no controversy between the assignor and assignee, the assignor is not a necessary party, whether at law or in equity. Lambert v. Nanny, 2 Munf. 196; Mayo v. Murchie, 3 Id. 358; Newman v. Chapman, 2 Rand. 93. Robinett was named in the subpoena, though his name was omitted in the bill; and he was proceeded against by publication as a party, and was so treated throughout the case. But if Robinett was not a party, and the treating him as such was an error, it is not an error that Ferguson can object to. He comes in as an absent defendant to have any injustice done to him corrected; and he cannot be heard in this court upon the first appeal. Heffernan v. Grymes, 2 Leigh 512; Platt v. Howland, 10 Leigh 507. 2d. The act, Code p. 708, § 13, authorizes a petition by an absent defendant for a re-hearing. Is it the case in any nation or country that a foreigner may defend a suit without rendering his person or property amenable to the judgment of the court? And yet here is a party living in Missouri who, remaining abroad, sends his petition and answer, to be filed in his absence. 3d. The decree of 1853 cannot be questioned. The act says, if the party appears in five years, he may petition. This party comes in 1853, and gets leave to file his petition upon giving notice; and no step is taken until 1859, and no order made until 1866. The petition did not stop the running of the statute; that could only be done by the decree. Erskine v. Henry, 9 Leigh 188; 1 Greenl. Evi. p. 147, § 74; 1 Starkie's Evi. p. 34; 2 Cow. & Hill, notes p. 293, note 298. 4th. It was not competent to the Circuit Court to take cognizance of any matter affecting the decree of 1853, whilst the appeal from that decree was depending in this court. A final decree having been rendered in the cause, and an appeal taken from that decree, it was no longer a pending cause in the Circuit Court, and could never be placed again upon its docket, except by the decree of this court reversing the final decree. Harvey v. Branson, 1 Leigh 108; Heffernan's adm'r v. Grymes, 2 Leigh 512; Tennent's heirs v. Pattons, 6 Id. 196. 5th. The evidence upon which the commissioner reported in favour of Ferguson, and upon which the court below based its decree, is not competent evidence; and if competent, does not make out his case.
RIVES, J.
Concurring in the judgment of the court in these cases, I yet deem it proper to indicate my dissent from so much of the opinion as sustains the jurisdiction upon Ferguson's petition for a re-hearing. When this petition was presented to the court on the 12th of November, 1853, it was not received, but the court made an order that the petitioner's application be granted, unless the plaintiff show to the contrary on or before the next term of this court, after being served himself or his counsel with a copy of this order. This service was not had till May 9th, 1859--more than five years after the date of the decree. The question therefore arises, whether this is a compliance with the requirement of the Code, ch. 170, § 13, p. 708.
It is material to enquire, in the first place, whether the condition imposed by the court upon the reception of the petition, and the grant of its prayer, was proper and regular. The case had been concluded in that court, and an appeal had been taken and was then pending in the Court of Appeals. The petitioner did not place himself personally in the jurisdiction of the court, but appeared by counsel through petition and answer qualified to and certified in another State; it was, therefore, eminently proper in my view, that the court, before receiving or entertaining the petition, should place the party under a rule to notify the plaintiff or his counsel of his proceedings, so that he should have notice of the attempt to re-open the case; and make such opposition thereto, or ask such conditions of the non-resident as to security for costs, as should comport with his views and interests. There was yet abundance of time for this step; and it was clearly in the discretion of the court to adopt this precaution, while the interest of no party could have been jeopardized by it; and the court might be better prepared upon the service of the order to take its course. This, of course, would have been different if there had been any danger of an efflux of time within which the statute required action of the absent defendant.
It, of course, devolved upon the petitioner or his counsel to execute this order; until he did so, he was not in court. His petition was not filed, received or entertained; nor any leave given for the filing of his answer, or the re-hearing of the cause. These papers were yet in the custody of counsel, and could not be the basis of the court's action until its condition was fulfilled. Under such circumstances, I cannot consider the terms of the statute complied with until the 9th day of June, 1866, when the petitioner acquainted the court with the service of its order, and had leave for the first time " to file his petition and answer." At that time he was precluded from this resort by the statutory bar.
I do not think this view at all in conflict with the cases of Overstreet v. Marshall, 3 Call 192, and Williamson v. Gayle & als, 4 Gratt. 180. Both of these cases turn upon the terms of the acts of assembly for granting of writs of error and supersedeas in the one case, and of appeals in the other. In the former it was held, that the supersedeas was granted at the date of the judge's order awarding it; and was not barred, though the writ did not issue until after five years; and in the latter, that the appeal dates from its allowance, and was not affected by a failure to give bond within five years. These decisions may well stand upon and be justified by the literal terms of the laws in question; but they are not authority to show that we are to consider a party as having petitioned for the re-hearing of a case when he was virtually told by the court that his petition could not be received nor his application granted, save upon a condition, (and that a most reasonable and proper one,) which he was therefore bound to observe and fulfill. I, therefore, conclude that it was too late under the statute to enter the said order of 9th of June, 1866; and the case of the defendant Ferguson is not aided by his answer in that cause; if, indeed, it shall be allowed to weigh as responsive; upon which I do not pass.
But if I be wrong in this position, I hold this defendant concluded by his laches in prosecuting his remedy under our statute, under the authority of Anderson v. Lively, 6 Leigh 77. True, the laches here is not so great or of such duration as in that case, but is under circumstances calculated to make it as inexcusable. His co-defendant, the James River and Kanawha Company was, by its appeal, here seeking to attain the same object that a re-hearing was designed to accomplish for him. Shall he then be permitted to avail of the two resorts? and is not the implication strong that he was by his delay abandoning his application below and relying on the contest waged here for him, in the name of this Company, which we have seen has no substantial interest in this controversy? But if this delay be not the more indefensible on this account, I think the statute of limitations always affords by analogy and legislative prescription what the court denounces as laches.
On these two grounds, I think, the court below erred in re-hearing this cause.
JOYNES, J.
I shall first dispose of the case of Littlejohn v. Ferguson & als.
There is nothing in the objection that the Circuit Court could not entertain Ferguson's petition for re-hearing, while the appeal of the James River and Kanawha Company was depending. The statute (Code ch. 170, § 13) which authorizes an absent defendant who has not appeared, & c., to petition to have the case re-heard, makes no exception of cases in which an appeal has been taken. It is true the appeal was really prosecuted for Ferguson's benefit. But on the appeal advantage could be taken only of errors in the record as it stood at the time of the decree complained of, while Ferguson had the right, under the statute, to file his answer and introduce evidence so as to make, if he could, a different case. It is true, that after the appeal there was no longer a case pending in the Circuit Court. But that was not for the reason that an appeal had been taken, but for the reason that the case had been ended in that court by a final decree. But the original papers remain in the Circuit Court after an appeal, and there is no difficulty in reinstating the case on the docket when a petition for re-hearing is filed.
The appeal, however, in such a case will not be dismissed upon the filing of the petition for re-hearing, as the decree complained of can only be altered or set aside on the re-hearing. Platt v. Howland, 10 Leigh 507. If on the re-hearing the decree, or so much of it as is the subject of appeal, is wholly set aside, a dismission of the appeal will, as a general rule, follow as a matter of course. But if an appeal from the decree on the re-hearing should be taken before the appeal from the original decree has been dismissed, the appellate court may refuse to dismiss the appeal, inasmuch as the decree on the re-hearing may perhaps be reversed on the appeal taken from it. In this instance, there has been no motion to dismiss the appeal from the original decree, so that both appeals are now before us for decision.
It was essential to the jurisdiction of the court upon the proceedings for a re-hearing that they should appear to have been duly instituted within the time prescribed by law. And as was held by this court in the case of a bill of review, it was incumbent on Ferguson to show this affirmatively, though no objection were made that the proceedings were too late. Shepherd v. Larue, 6 Munf. 529.
It was suggested at the bar that the language of the statute requires that the proceedings shall be concluded, as well as commenced, within the time limited. But such a construction would be inconvenient and harsh in its results, would be inconsistent with what is required in analogous cases, and is not demanded by the language. The language is, that the absent defendant may, within the time limited, " petition to have the case re-heard, and may plead or answer, and have any injustice in the proceedings corrected." This language is satisfied when the absent defendant, within the time limited, " petitions to have the case re-heard." But the question remains, and is important in this case, whether it is enough that he should present his petition to the court within the time limited, or must he go further within the time limited, and obtain leave of the court to file his petition, upon notice to the adverse party?
It seems to me that the absent defendant petitions to have the case re-heard " within the terms and within the meaning of the statute" when he presents his petition to the court. And, for this purpose, it matters not whether he is allowed to file his petition at once as matter of right, or whether he is required to obtain leave of the court to do so after notice to the adverse party. In either case he has begun the proceeding. He ought not to lose the benefit of this diligence because he cannot obtain the sanction of the court within the time prescribed. He may fail to do this without any fault of his own--as, for example, from the failure of the court to sit. The language of the statute requires that the absent defendant shall do an act within the time; namely, that he shall " petition to have the case re-heard; " it does not require anything more. If we say he must do more, we go beyond the statute, unless indeed, we can say, that a party does not petition the court until the court agrees to entertain his petition.
Upon the view which I take, the degree of diligence required by this statute is certain and definite, and is the same in all cases. But if leave of the court must be obtained after notice to the adverse party, the diligence to be used to avoid the bar will be different in different cases, in proportion to the greater or less time requisite for giving the notice and getting the leave. If notice to the other party is necessary, the court has no discretion to dispense with it; and if it had, it surely ought not to depend on the discretion of the court whether the party shall be in time or not. Suppose the court, upon hearing the application, refuses to give the leave, and the party is obliged to appeal. The time may run out before he can obtain the leave by the judgment of the appellate court. Is he, in such a case, to be turned out of court because he has not obtained the leave of the court within the time, when he has been doing his utmost for years to obtain it? Or, suppose the party should fail to get the leave of the court in consequence of the failure of the court to sit. Is the delay in such a case to be imputed to him? This particular difficulty might be removed by holding that it is the notice to the adverse party, and not the leave of the court, which determines the application of the statutory bar. But this construction is not sustained by the language of the statute, or by the analogies of the law in like cases, and is liable to most of the objections which apply to the other.
The view which I have been urging makes the construction of this statute conform to the analogies in like cases. Thus, under a former law, it was provided that no supersedeas, & c., should be " granted" after five years. It was held, that the order allowing a supersedeas was the commencement of proceedings, so as to avoid the bar of the statute, though the supersedeas bond was not given, and of course the supersedeas was not issued within the five years. Overstreet v. Marshall & al., 3 Call 192. By the act of 1830-31, it was provided, that no petition preferred to the Court of Appeals, or to any judge thereof, should be received or allowed unless preferred within five years. It was held, that the bar of the statute was avoided by the presentation of the petition to the court or judge within five years, though the appeal, & c., should not be allowed within that time, or though it should be allowed on condition that a bond should be given, which was not given in that time. Williamson v. Gayle, 4 Gratt. 180. And under the old law first alluded to, the court went further, and held, that although an order allowing a supersedeas had not been made within the five years, yet as a petition had been presented which, through inadvertence in the court, had not been acted on until after the time had elapsed, the limitation of the statute did not apply. Pugh's ex'or v. Jones, 6 Leigh 299.
The absent defendant is proceeded against without notice by the service of process, and, it may be, without any actual knowledge of the suit. The court can make no personal decree against him that will be binding upon him. 3 Gratt. 98; 9 How. U.S. R. 336; 24 Id. 195. When he comes forward to controvert what has been done behind his back, as it were, and offers to submit himself to the jurisdiction of the court, his proceeding should not be treated with disfavour, but the contrary. Why, then, should we, by construction, exact conditions from him not plainly required by the language of the statute, and not conformable to what is required in analagous cases?
Ferguson, therefore, commenced his proceedings in time, and saved the bar of the statute. But after doing so he delayed for more than five years to give notice of them to Littlejohn, and then took no other step until seven years later. This would appear to have been great laches, and might, in the absence of explanation, have authorized the Circuit Court to dismiss the proceedings, if a motion had been made to that effect. Anderson's adm'r v. Lively, 6 Leigh 77. But the court, in that case, would have acted not on the ground that the proceedings were barred by the statute, but on the ground of laches in their prosecution, and the action of the court would have depended on its discretion, under all the circumstances. Williamson v. Gayle, 4 Gratt. 180. No motion to dismiss the proceedings on this ground was made in the Circuit Court, and there is nothing to show that this ground was shown for cause when Littlejohn showed cause in 1866 against filing the petition and answer. As Ferguson has not had an opportunity of explaining his delay, I do not think this court ought now to dismiss his proceedings on that ground. The delay was not so great but that the court can see that it might perhaps have been satisfactorily explained. The case must, therefore, be considered upon its merits.
Littlejohn and Ferguson each claimed to have an order drawn by Robinett on the James River and Kanawha Company: that of Littlejohn being for $783, and that of Ferguson being for the whole balance due from the Company to Robinett. Littlejohn's order, which he filed with his bill, bears date the 8th day of February, 1839, while Ferguson alleged that his order bore date the first day of the same month. It did not appear which of these orders was first presented or made known to the Company, so that the question as to the priority of right between them depended on the priority of date alone.
The answer of the James River and Kanawha Company disclaimed all knowledge as to the order of Littlejohn, but did not dispute its genuineness, or expressly call for proof of it. It was treated as genuine by the commissioner and by the court, and proof of it was not insisted on by the Company. Ferguson did not dispute the genuineness of Littlejohn's order, or call for proof of it, in his answer or before the commissioner, and it was treated as genuine throughout the case. Under these circumstances, it was too late to make the objection in this court to the want of proof of Littlejohn's order. Anderson & al. v. De Soer, 6 Gratt. 363. Besides, the bill alleges that the order was " drawn" by Robinett, and this was sufficient under the Code (ch. 171, § 38) to dispense with proof of the signature to the order, in the absence of a denial of it under oath, even though proof had been expressly called for. This provision of the code furnishes a rule of evidence, and it applied to this case, though the bill was filed before the Code went into operation. Somerville v. Wimbish, 7 Gratt. 205; Usher's heirs v. Pride, 15 Gratt. 190. It must, therefore, be taken as a fact in the case, that Littlejohn held an order from Robinett bearing date the 8th day of February, 1839.
The bill, after alleging that the plaintiff held an order dated the 8th day of February, 1839, and that he had presented it to the Company, proceeded to allege, that another order was presented to the Company from Robinett, in favor of Ferguson, for the whole balance due from the Company to Robinett, and then uses these words, " which [that is, Ferguson's order] purports to have been drawn also on the 8th day of February, 1839, and it is pretended was drawn before the order in favor of your orator." The answer of the Company did not pretend to any actual knowledge as to Ferguson's order. Ferguson, in his answer, alleges that the statement of the bill in relation to the date of his assignment is untrue, and then proceeds thus: " The date of the said assignment to this respondent was the 1st of February, (not the 8th of February,) 1839, and the assignment was actually made on the said 1st day of February, when it bore date." It was alleged that this order had been left in the possession of the James River and Kanawha Company, and had been lost.
The bill called for no discovery as to the date of Ferguson's order. The allegation of the answer in respect to the date of Ferguson's order was affirmative matter, not responsive to any allegation of the bill, and the burden, therefore, lay on Ferguson to prove it. 2 Rob. Pract. (old) 330, and cases cited; Clarke v. White, 12 Peters R. 178; opinion of Green, J. in Taylor v. Moore, 2 Rand. 563; Leas' ex'or v. Eidson, 9 Gratt. 277.
The case of Ferguson, therefore, derives no support from his answer, and must depend upon the evidence. There is no direct evidence in the case as to the date of Ferguson's order, nor is there any direct evidence even of its existence. The commissioners to whom the case was referred, relied upon several facts and circumstances, which they considered sufficient to establish that Ferguson had an order from Robinett for the whole balance due him by the Company, and that it bore date on the 1st day of February, 1839. I shall not consider the question, whether Ferguson had an order at all, because it is immaterial whether he did or did not have one, unless it was of prior date to Littlejohn's. I shall confine myself to an examination of the grounds which are to establish that the order of Ferguson bears date on the 1st of February, 1839, or before that of Littlejohn.
The first thing relied on is the opinion given by Mr. Baxter as counsel for the James River and Kanawha Company, in favor of Ferguson's priority over Littlejohn, and of the propriety of paying the money to him upon his giving a bond of indemnity. The production of this paper may prove that Mr. Baxter gave such an opinion, and that he founded his opinion on the hypothesis of a certain state of facts, but it can certainly prove no more. Even if the facts on which the opinion was based had been stated as being within the knowledge of Mr. Baxter, the statement of them in this paper would not be evidence of them. But it is evident from the opinion, that Mr. Baxter had never seen Littlejohn's order, (the bill had not then been filed,) and that he relied upon Ferguson's representation to him that his order was prior to Littlejohn's.
The next thing relied upon is, the recital in the bond which Ferguson gave to the Company on the 15th day of October, 1839, on receiving from them the balance due to Robinett, and by which he undertook to defend Littlejohn's suit, and to indemnify the Company against Littlejohn's claim. This bond recites as a fact, that Robinett made the transfer to Ferguson by an instrument of writing bearing date the 1st day of February, 1839.
The production of this bond may prove that the Company paid the money to Ferguson on the ground that his order was believed to be of prior date to Littlejohn's; or, if you please, on the ground that his order was believed to bear date on the 1st day of February, but it does not prove that in point of fact it did bear that date, or any date prior to that of Littlejohn's order. The recital is really nothing more than the declaration of the Company and of Ferguson affirming the existence of the facts recited as the motive and justification for what they then did. And now, when the propriety of what they then did is called in question, depending upon the truth of the facts recited, they produce their own declaration that these facts existed, to prove in their own favor that, in point of fact, they did really exist.
It is undoubtedly true, that upon reading the recital in this bond we feel that there is a certain degree of probability that the parties concerned took pains to ascertain the date of Ferguson's order and to recite it correctly, and in proportion to our confidence in the intelligence and integrity of these parties, we feel a greater or less degree of moral conviction that the facts really were as they recited them to be. But if there had been no bond and no recital, and nothing but the payment of the money by the Company to Ferguson, we might have felt, in like manner, that there was a certain degree of probability, and perhaps a very high degree, that the order in favor of Ferguson was the oldest, from the fact that the Company, with the means of ascertaining the facts and a motive for doing so, paid the money upon it. But this would be neither more nor less than to make the mere payment of the money justify itself. And yet, in principle, it would be of a piece with what I am now considering.
There is but one other circumstance relied upon to prove the date of Ferguson's order. It is the endorsement on the power of attorney from Robinett to Ferguson. We have no explanation of this endorsement. We do not know when, why, or by whom it was made. We do not know to what the date " February 1st, 1839," refers. Mr. Munford, the present secretary of the Company, supposes it to refer to the time at which the power of attorney was first made known to the Company. It certainly did not represent the date of the power of attorney on which it was endorsed. What ground is there for saying that it had reference to an assignment on another paper which is not shown to have been with the power of attorney, and that it was intended to indicate the date of that assignment? What is there to show that the person who made that endorsement did not regard the power of attorney as in effect an assignment, and refer to it as a power of attorney and assignment?
It is evident, therefore, that this endorsement, even if it could be used at all as evidence of what is stated in it, proves nothing to the present purpose.
It seems to me, therefore, to be very clear, that Ferguson failed to establish that his order was dated on the 1st of February, 1839, or that it bore date prior to Littlejohn's. In the absence of any evidence on the subject, the presumption must be that Littlejohn's order was given first. For it would have been an act of folly as well as a fraud in Robinett to give Littlejohn an order for the amount of his debt when he had already given Ferguson an order for the whole balance due him from the Company. The court will not presume this, in the absence of all evidence, but will presume the contrary.
After Littlejohn filed his bill in October, 1839, he took no other step in the case until 1849, when he obtained orders of publication against Robinett and Ferguson as absent defendants. In the absence of explanation, this seems to have been great laches; but I do not think we are authorized to dismiss the bill on that ground. If we were to do so, we should go beyond any former decision of this court. In Chinn v. Murray, 4 Gratt. 348, this court sustained a suit where there had been a much greater interruption in its prosecution. In this case, the James River and Kanawha Company had been served with process, and Ferguson, though not served with process, was aware of the suit, and stipulated to defend the Company in it. He might, therefore, have taken steps in the name of the Company--if he did not choose to appear--to have the suit dismissed, if not duly prosecuted. It was his laches, therefore, as well as the plaintiff's. On this ground Lord Redesdale refused, in Griffard v. Hort, 1 Sch. & Lef. R. 386, to dismiss a bill which had been pending, without active proceedings, for forty years; the defendant insisting on the plaintiff's laches in proceeding as a bar to the relief asked for. In Crawford's ex'or v. Patterson, 11 Gratt. 364, where this court dismissed the bill on account of the laches of the plaintiff in the prosecution of his suit, the delay was twenty-three years; the defendants against whom the claim was made, and all the parties who were cognizant of the transactions, had died, and there was strong ground to hold that the plaintiff had acquiesced in a report made before proceedings in the suit were suspended.
In this case, Ferguson had full opportunity to make his defence. His defence rested on a single fact, the importance and conclusiveness of which he well knew, and which, if true, could be easily proved. The defence of the Company was the same. If he chose to neglect his own defence and that of the Company upon an assumption that Littlejohn had abandoned his claim, it was his own folly.
These views dispose fully of the case of Littlejohn v. Ferguson & al., and render it unnecessary to consider any other question raised in that case. I will add, however, that if Ferguson had established the priority of his order, yet as it was admitted to have been given only as a security for debts and liabilities, an account should have been ordered to ascertain the amount due upon it, so that the residue of the fund, if any, might be applied to Littlejohn's claim.
These views likewise dispose of most of the questions in the case of James River and Kanawha Company v. Littlejohn. There was no exception to the report of the commissioner in that case; but none was necessary. The commissioner reported that he had heard no evidence, and that his conclusions were founded entirely upon the exhibits in the case, to which he referred in detail. Whether these papers sustained the conclusions of the commissioner was a question arising on the face of the report. One other question, however, has been raised in that case which remains to be considered.
It is insisted that Robinett was an indispensable party to Littlejohn's bill, and that although his name was included in the subpoena, and he was proceeded against by publication, he cannot be regarded as a party in the cause, according to the case of Moseley v. Cocke,, 7 Leigh 224, and other cases, and that the decree must be reversed on that ground.
It is sometimes laid down, that to a bill filed by the assignee of a chose in action, the assignor is in all cases an indispensable party. It was so said by Judge Scott, delivering the opinion of a special court in Corbin v. Emerson, 10 Leigh 663. But this language ought to be understood with reference to the case in which it was used. There was no proof of the assignment in that case; it was not before the court, and the court could not say, therefore, whether it was absolute and unconditional or otherwise. The want of proof of the assignment seems to have been the point mainly urged in the argument, and the authorities bearing on the necessity of making the assignor a party were not cited. That there are cases in which the assignor is not a necessary party to a bill filed by an assignee, appears from Newman v. Chapman, 2 Rand. 93, which was not cited in Corbin v. Emerson. I do not think, therefore, that Corbin v. Emerson can be regarded as settling, that in all cases whatsoever the assignor is an indispensable party.
It is a general rule, that all persons interested in the subject matter of the suit must be made parties; and this rule is founded on the reason, that courts of equity aim " to do complete justice, by deciding upon and settling the rights of all persons interested in the subject matter of the suit, so that the performance of the decree of the court may be perfectly safe to those who are compelled to obey it, and also that future litigation may be prevented." Story Eq. Pl. § 72; Clark v. Long, 4 Rand. 451; Jameson's adm'r v. Dashields, 3 Gratt. 4. There are exceptions to this general rule which, in the language of Judge Story, " will be found to be governed by the same principle, which is, that as the object of the general rule is to accomplish the purposes of justice between all the parties in interest, and it is a rule founded, in some sort, upon public convenience and policy, rather than upon positive principles of municipal or general jurisprudence, courts of equity will not suffer it to be applied so as to defeat the very purposes of justice, if they can dispose of the merits of the case before them without prejudice to the rights or interests of other persons who are not parties." Story Eq. Pl. § 77. Consistently with these general principles, Judge Story, upon the authority of numerous cases which he cites, lays down the true doctrine as to assignors to be this, that where the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignee, and the extent and validity of the assignment are not doubted or denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the assignor a party. And Chancellor Walworth, in a case not cited by Judge Story, held, after an examination of the authorities, that where the assignment purports to transfer the whole interest of the assignor, and there is nothing in the pleadings or proof to induce a belief that it did not really do so, it is not necessary to make the assignor a party. Ward v. Van Bokkelen, 2 Paige's R. 289.
In this case no decree was sought against Robinett. Ferguson and the James River and Kanawha Company claimed that Robinett had parted with his whole interest, and they both treated the controversy as one between Littlejohn and Ferguson alone. Hence, when the Company paid the money to Ferguson, it took from him indemnity against Littlejohn, but none against Robinett. And accordingly neither of them objected in the court below to the failure to make Robinett a party. If it appeared that Robinett was a necessary party, this court would reverse the decree on that ground, although the objection was not taken by demurrer or otherwise in the Circuit Court. Clark v. Long, 4 Rand. 457, and cases cited; Taylor's adm'r v. Spindle, 2 Gratt. 44. But this court will not reverse a decree for the failure to make a party where it appears affirmatively that the party, if he had been brought before the court, would have been merely a formal party, against whom no decree was asked, and whose presence was not necessary for the protection of any of the defendants.
I am of opinion, therefore, that the decree in Littlejohn v. Ferguson & al. should be reversed, and that in James River and Kanawha Company v. Littlejohn affirmed.
MONCURE, P. concurred in the opinion of Judge Joynes, except upon the question whether Ferguson's petition was barred by the statute. Upon that point he expressed no opinion, saying that he had not examined it.
All the judges concurred in affirming the decree in the James River and Kanawha Company against Littlejohn, concurring in the opinion of Joynes, J., except that Judge Rives said he expressed no opinion on the weight that was to be given to Ferguson's answer.
The James River and Kanawha Company v. Littlejohn, affirmed.
Littlejohn v. Ferguson & als., reversed.