Opinion
02-02-1852
LENOWS v. LENOW.
Stanard and Bouldin, for the appellant. Macfarland, for the appellee,
(Absent Cabell, P.)
A proceeding by foreign attachment is instituted against two persons, as jointly indebted to the plaintiff. One of them appears and answers the bill; but the other is regularly proceeded against as an absent debtor, and there is a joint decree against both defendants. HELD:
1st. That the absent defendant who did not appear, cannot appeal.
2d. But the decree being a joint decree, and being erroneous, the appellate Court will, upon the appeal of the absent defendant who did appear and answer, reverse the decree as to both.
This was a case of foreign attachment brought in the Circuit court of Southampton county, by Jacob Lenow against Joseph and James Lenow as absent debtors, and Frances Lenow as a home defendant having effects of Joseph Lenow in her hands. The bill charged that Joseph and James Lenow were indebted to the plaintiff by a bond in which they were both bound for 1600 dollars. Frances Lenow answered the bill admitting that she had in her hands effects of Joseph Lenow. Joseph Lenow appeared and was permited to file his answer, in which he denied that he or James owed the plaintiff any thing. He admitted that the bond for 1600 dollars had existed, but that upon a settlement it had been delivered up and a bond for 700 dollars, the balance due, was executed by James Lenow who was the principal debtor; and that this bond had been afterwards discharged by him. James Lenow was proceeded against as an absent defendant, and the bill was taken for confessed as to him.
Whether any thing was due to the plaintiff from the defendants Joseph and James Lenow was a mere question of fact, and this Court thought there was nothing due. The Court below directed a commissioner to state an account of the payments made upon the bond, and according to the commissioner's last report there was due the sum of 368 dollars 83 cents, with interest thereon from the 6th of October 1841; and for this sum with its interest, the Court gave to the plaintiff a joint decree against Joseph and James Lenow; and directed the sheriff to sell the interest of Joseph Lenow in the slaves in the possession of Frances Lenow; and out of the proceeds to pay the debt, interest and costs. From this decree Joseph and James Lenow applied to this Court for an appeal, which was allowed.
Stanard and Bouldin, for the appellant.
Although the absent defendant James Lenow, who did not appear in the Court below, could not appeal from that decree, as it has been held by this Court in Platt v. Howland, 10 Leigh 507, and Barbee v. Pannill, 6 Gratt. 442, yet Joseph Lenow did appear and answer; and his appeal is properly here. The decree appealed from is a joint decree against both Joseph and James Lenow. Joseph Lenow is interested to have the whole decree reversed, because if affirmed as to James, when he pays the money, he may call upon Joseph for contribution. But further, as we have said, the decree is a joint decree against both; and if the Court reverses the decree, from the necessity of its nature, the whole decree is reversed: And as James Lenow is not before the Court upon this appeal, the Court cannot enter another decree against him.
Macfarland, for the appellee, referred to Platt v. Howland, 10 Leigh 507, to shew that if there was error against the absent defendants it could not be corrected by appeal. He also referred to Heffernan v. Grymes, 2 Leigh 512, to shew that the home defendant could not correct the decree as to the absent defendants, by appeal to this Court. Then the question is whether one of two absent defendants can come in and make himself a party and contest the plaintiff's claim as to both. There is no principle which will authorize him to defend the case for the other absent defendant, that did not equally apply to a defence made by a home defendant for the absent defendant. The policy of the statute too forbids the relief to the one upon the appearance and defence of the other. It is enabling one to make defence without giving to the plaintiff the security to which the law entitles him. Moreover, although the party appealing is bound if the decree is affirmed, yet the other absent defendant is not bound. And he thus plays the safe game, of heads I win, tails you lose: If the decree is reversed he has the full benefit of it; if it is affirmed, and it may be affirmed by a divided Court, he is not bound.
OPINION
DANIEL, J.
The Court is satisfied by the pleadings and proofs in the cause, that the bond of sixteen hundred dollars, in the bill and proceedings mentioned, had been reduced prior to the 1st September 1840, by payments, to about the sum of seven hundred dollars; that on the day last mentioned, a new bond (whether executed by James Lenow or Joseph Lenow does not distinctly appear,) for the said balance of seven hundred dollars was delivered by the said Joseph to the appellee Jacob Lenow, and accepted by the latter in satisfaction and discharge of the said balance, and that the said bond of sixteen hundred dollars was thereupon surrendered by the said Jacob to the said Joseph; and that thereafter and prior to the institution of this suit the said bond of seven hundred dollars was fully satisfied, by payments made by the said James and Joseph. The Court is therefore of opinion, that the Circuit court erred in adopting the special statement of the commissioner as the basis of its decree, and in rendering a decree against the appellants for the balance reported in said statement; and in ordering a sale of the property attached; and that it ought instead thereof, to have confirmed the original report of the commissioner, and dismissed the bill. The Court is also further of opinion, that notwithstanding James Lenow was regularly proceeded against as an absent defendant, and therefore, according to the decisions of this Court in the cases of Platt v. Howland, 10 Leigh 507, and of Barbee v. Pannill, 6 Gratt. 442, had no right to appeal to this Court on account of any error in the decree against him; yet that as Joseph Lenow filed his answer under the permission of the Court, and thus entitled himself to the privileges of a home defendant; and succeeded, in the opinion of this Court, as above indicated, in proving a defence which was in no respect personal, but established the satisfaction and discharge of the joint obligation on which the suit was founded, the appeal of the said Joseph necessarily brings under review the propriety of the whole decree, and devolves upon this Court the duty of correcting and reversing it, in favour as well of the said James as of the said Joseph. The Court is therefore of opinion to reverse the whole decree with costs to the appellant Joseph Lenow. And this Court proceeding to render such decree as the Circuit court ought to have rendered, doth confirm the original report of the commissioner, and dismiss the bill with costs to the said Joseph Lenow.
DECREE REVERSED.