Opinion
10-08-1873
Goss & als. v. SOUTHALL, Receiver.
Watson, for the appellants. Michie, Wm. Robertson and Southall, for the appellee.
1. By a decree of the Circuit court of A. made in a pending cause on the 22d of October 1860, G. the sheriff, is directed to collect certain bonds, and deposit the net proceeds in the A insurance co. to the credit of the cause. In May 1866, G reports that he had collected the money on the 5th of May 1862, and had proposed to the A co. to deposit the net amount $882.13, but the co. declined to receive it, and hence the money was not deposited as directed. In October 1866, by another decree in the cause, G was directed to pay this sum with six per cent. interest to S, who was appointed receiver in the cause. In January 1869, S, signing himself receiver in the cause, gave more than ten days' notice to G and his sureties, that he would move the Circuit court for a judgment against them for the penalty of G's bond, to be discharged by the payment of the said sum and interest. And the court gave judgment for $882.13, with six per cent. interest, from, & c. HELD:
1. The court had authority under §40, of ch. 49, of the Code of 1860, to render the judgment in favour of S as receiver.
2. It was proper not to scale the money.
The case is fully stated in the opinion of Christian, J.
Watson, for the appellants.
I. The judgment was not authorized by the 40th Sec. of Chap. 49, of the Code.
1. Because the notice was not based on the sheriff's return of May 1866, but expressly on the decree of October 1866, and was not sufficient as a notice under said section.
2. Because by the decree of October 1866, the sheriff's return was merged, and could not be made the foundation of another judgment.
3. Because the return of the sheriff was not made " upon any order, warrant or process; " and there is no evidence that any such order, warrant or process was in his hands. 1 Rev. C. 1819, sec. 48, ch. 134, ibid p. 526-527; and sec. 27, chap. 49 of Code of 1860.
4. Because the return does not show that the appellee was entitled to recover money of the sheriff. Tolson v. Elwes, 1 Leigh 436; Code sec. 3, chap. 187; Stuart v. Hamilton, 2 Hen & Mun. 48, Greenhow v. Barton, 1 Munf. 590; Mayor of Alexandria v. Hunter, 2 Munf. 228.
5. Because the proceeding was obviously not under the section in question, and the judgment was not in pursuance of the terms thereof.
II. The judgment was not authorized by the 5th. sec. of chap. 167 of the Code, because under that section, the County court alone had jurisdiction. Code § 2, ch. 49, § 8, of ch. 13, and § 1, ch. 157.
III. Nor by the 6th. section of chap. 167.
1. Because the appellee was not, in the sense of this section, entited to recover money by action on any contract. Perkins, & c., v. Giles, Governor, 9 Leigh 397; 1 Story's, Eq. sec. 833 and 833a; 3 Daniel's Ch. P. 1919.
2. Or, if he was, only two of the defendants had sixty days notice of the motion; and the notice was not returned to the Clerk's office forty days before the motion was heard; which must be taken to have been on the 13th day of May 1869. See the first and last clauses of the order of the 22d May 1869.
IV. If it was proper to sustain the motion at all, the judgment should have been for the scaled value of the amount collected, as of May 1862. This is certainly true, if the judgment was founded on the return of May 1866; and if on the decree of October 1866, still I submit that the amount should have been scaled under the 3d section of the act of March 3, 1866, Sess. Acts 1865-6 p. 185; and because the sureties were not bound by the decree of October 1866. Drew v. Anderson, 1 Call 53.
5. Finally, the plaintiff in this motion has obtained a judgment on the law side of the Circuit court, to which he had no right to resort. If the judgment was based on the 40th section of chapter 49, it is clearly wrong, for, by it, the power to render judgment is confined to " the court to which, or to the Clerk's office of which, such return is made," and it is not denied that the return in this case was, and ought to have been made to the chancery side of the court.
If the judgment was entered pursuant to the 6th section of chapter 167, it is none the less faulty, for the reason that the Chancery court having taken jurisdiction of the matter, it would not release its hold for a motion to be made before another tribunal.
Michie, Wm. Robertson and Southall, for the appellee.
I. The appellee had a right to recover, under the 40th section of chapter 49, of the Code of 1860. 1. The position taken by the appellants that nothing was due to the appellee at the time of the Sheriff's return, is purely hypercritical. Something was then due to those he afterwards represented, and for whom he sues, the substantial parties plaintiff.
Besides, taking the statute literally, it does not say that the motion shall be made by the person entitled to recover by action. It provides that the motion may be made " on behalf of such person" --and so in this case, the motion was made by the appellee " on behalf of" those entitled to recover " at the time such return ought to have been made."
2. The statute just referred to, does not authorize a judgment for the penalty of the sheriff's bond: therefore, the judgment was properly given for the sum of $842.13, with interest from the 5th May 1862, subject to the two small credits: that being " so much principal and interest as were recoverable by action at the time such return ought to have been made." It is true that the court gave only six per cent. interest upon the said sum of $842.13, instead of fifteen per cent. interest, as it might have done under the law. But the appellee, and not the appellants, was prejudiced by this low rate of interest.
The appellants were in no way misled by the notice calling for a judgment for the penalty of the bond to be discharged by the payment of the precise sum for which judgment actually went.
The judgments being on the law side of the Circuit court, would make no difference, for the statute already refered to, authorizes the court, to which the return is made, to give judgment; without in any way confining the authority to any particular side of the court.
The Circuit court of Albemarle is a unit. It is not two different courts--one a court of law and the other a court of equity; it is simply one court, with a twofold jurisdiction. It is usual to keep a law order book and a chancery order book; but under the law one order book for both law and chancery entries, is sufficient. (See sec. 5, chap. 161, page 685, Code of Va. of 1860.) But the fact is, that there is nothing in the proceedings to show on which side of the court the judgment was given, if we except the statement of the clerk making the transcript of the record.
II. As to the 5th section of chapter 167: This section authorizes the motion to be made in the court, in whose clerk's office the bond " is required to be returned." We can find nothing in the law requiring the sheriff's bond to be filed in the clerk's office of the county, rather than the Circuit court.-- (See sec. 24, chap. 8, of the Code, page 94; and sec. 8, chap. 13 of the Code, page 103; and see Wheeling Acts 1861-2, page 5.)
III. As to the 6th section of chapter 167: The bond of the sheriff and his sureties is a contract made by them with the Commonwealth for the benefit of all who may become interested. The appellee certainly had a right to bring an action on this bond in the name of the Commonwealth for his benefit. If so, he had an equal right to move in his own name for judgment on the same. The statute does not say that an action can be maintained only on a contract made between the plaintiff and defendant in the suit; though in the case of a sheriff's bond the contract is virtually made with the public through the Commonwealth.
As to the sixty and forty days: The defendants, E. Goss and Sam'l M. Teel, were served with a sixty days' notice, and it was returned certainly more than two years, much less forty days, " before the motion was heard." (See order of 22d May, 1869, and order of 27th May, 1871.) The idea that a motion must be made in the name of the Commonwealth, because an action if brought, must be prosecuted in the name of the Commonwealth, is certainly a novel one. Motions are always brought in the name of the party making them.
IV. The court did not err in refusing to scale the debt.
1. The sureties have no right to impeach an unreversed decree rendered against their principal.
2. The Sheriff was responsible for the full amount to be collected, because he acted under a decree which only authorized him to collect in good money.
3. The evidence shows that greenbacks, at the date of the decree against him, (October 1866,) were worth no more than Confederate money in May 1862, when Goss made the collection. See Magill v. Manson, 20 Gratt. 527.
4. There is no evidence to show that the collection was made in Confederate money. Goss should have been introduced to prove the fact, if it really existed. He does speak through his report, and that is silent as to the kind of currency received, leaving it to be inferred that he received such currency as he was authorized to receive, namely, good money.
The decree of the Court, so far from treating the collection as Confederate money, treated it as good money, and ordered the receiver, Southall, to collect from Goss accordingly.
OPINION
CHRISTIAN J.
This is a supersedeas to a judgment of the Circuit court of Albemarle. That court, by its decree rendered on the 22d of October 1860, in a certain chancery cause therein pending, in the name and style of " Figgatt, guardian, v. McClun, directed John W. Goss, sheriff of Albemarle, to collect certain bonds filed in said cause, and deposit the net proceeds of such collections in the Albemarle Insurance Company's office, to the credit of the cause, until the further order of the court.
No report of his action under this order was made by Goss until the 14th of May 1866. On that day he reported that he had made collections under the order of October 22d, 1860, of the net sum, after deducting commissions and other charges, of eight hundred and forty-two dollars and thirteen cents; that this collection was made on the 5th of May 1862, and that, as he was required to do by said decree, he made application to the Albemarle Insurance Company to take the amount so collected on deposit, and issue their certificate of deposit therefor; which the said company, through their cashier, refused to do; and hence the money was not deposited as the decree aforesaid directed. At the October term 1866 the cause came on again to be heard upon the papers formerly read, and the report of John W. Goss, late sheriff of Albemarle, & c.; on consideration whereof the said court adjudged, ordered and decreed, that the said John W. Goss, as late sheriff of Albemarle, should pay to S. V. Southall, as receiver, thereby appointed by the court, the sum of eight hundred and forty-two dollars and thirty-eight cents, with interest thereon at the rate of six per centum per annum from the 5th day of May 1862 till paid.
On the 20th of January, 1869, S. V. Southall, signing his name as " receiver in Figgatt, guardian, v. McClun," prepared and signed a notice in writing, addressed to John W. Goss, sheriff of Albemarle, and his sureties, which notice, after reciting the execution of the sheriff's bond by Goss and his sureties, and after reciting the decree of the Circuit court of Albemarle, above referred to, and the fact that of the amount decreed to be paid to Southall, receiver, the sum of $842.13 was collected by Goss during his term of office as sheriff, commencing on the 1st of January 1861 and ending on the 1st of January 1862, notified the said sheriff and his sureties, that on the 3d day of the next May term of the Circuit court of Albemarle, the said S. V. Southall, as receiver as aforesaid, would move the said court for judgment against them for the sum of ninety thousand dollars (the penalty of the sheriff's bond) to be discharged by the payment of $842.13, with six per cent. interest thereon from the 6th of May 1862 till paid, subject to two credits--$30 as of the 11th of December 1867, and $20 as of the 18th of February 1868, and costs.
This notice was executed on the sheriff Goss and all his sureties except one. Two of the parties had sixty days notice before the day fixed for the motion; others more than thirty days; and all of them more than ten days. For some cause the motion was not finally heard, until the May term of the court in the year 1871, when a judgment was entered against the sheriff and his sureties (except Branham, upon whom no notice was served) for the sum of $842.13, with six per cent. interest thereon from the 5th of May 1862 till paid, and costs, subject to a credit of $30 paid 11th of December 1867 and $20 paid 18th of February 1868. To this judgment a writ of error and supersedeas was applied for, and awarded by one of the judges of this court.
The court is of opinion that there is no error in this judgment.
The proceeding against the sheriff and his sureties was a proper one, and the judgment authorized, under the 40th section of ch. 49, Code of 1860, which is in these words: " Of judgments on certain motions against officers and their deputies:" § 40. " If any officer or his deputy shall make such return upon any ORDER, warrant, or process, as entitles any person to recover money from such officer by action, the court to which, or to the clerk's office of which such return is made, may, on a motion on behalf of such person, give judgment against such officer and his sureties, and against his and their personal representatives, for so much principal and interest as would, at the time such return ought to have been made, be recoverable by such action, with interest thereon at the rate of fifteen per centum per annum from that time until payment."
This section, by its very terms, covers the case before us. The decree of the Circuit court of Albemarle, entered on the 22d of October 1860, was an " order" directing the sheriff, John W. Goss, to make certain collections, and deposit the net proceeds in the Albemarle Insurance Company's office, to the credit of the cause. The return which the sheriff made upon this " order," on the 14th of May 1866 was to the effect that he had collected the money in May 1862, but that the Albemarle Insurance Company refused to receive it on deposit, and that it was still in his hands. Whereupon, the court directed him to pay it over to S. V. Southall, receiver, appointed by the court in the same decree. Certainly the parties entitled to collect the fund could have recovered it by action against the sheriff and his sureties; and this section declares that " if any officer shall make such return upon any order as entitles any person to recover money from such officer by action, the court may, on behalf of such person, give judgment," & c. The motion was in this case properly made by the receiver, who was to receive and collect the fund on the behalf of the parties entitled to it. It was properly made, and the judgment authorized under the section referred to (§40, ch. 49, Code of 1860.) Under this section the service to the sheriff and his sureties was properly executed, as ten days notice is sufficient.
The court is further of opinion, that there was no error in giving judgment for the full amount collected by the sheriff, instead of its scaled value. The decree directing the collection of the bonds, filed in the suit of Figgatt, guardian, v. McClun," was entered in October 1860; so that the sheriff was only authorized to receive a sound currency. Nor does he claim that he collected it in any other currency. His report is silent as to the kind of currency he received; and the presumption is, he collected only such currency as the court authorized him to collect. But in point of fact Confederate currency, on the 5th of May 1862, the date of the collection by the sheriff, if such was collected, was of equal value to the present currency, on the day the decree was entered against him. (October 1866.)
Upon the whole case, the court is of opinion, that there was no error in the judgment of the Circuit court of Albemarle, and that the same should be affirmed.
JUDGMENT AFFIRMED.