Baltimore & Ohio Railroad v. Wilson

2 W. Va. 528

• Court: West Virginia Supreme Court
• Decided: January 15, 1868
• Status: Published

Opinion

Maxwell, J.

On the 25th day of January, 1864, Thomas I). Wilson sued out of the clerk’s office of the circuit court of Wood county, a summons, in which it was suggested that by reason of the lien of his writ of fieri facias, which issued from the clerk’s office of said court on the 4th day of January, 1864, against the goods and chattels of the Northwestern Virginia railroad company, there was a liability on the Baltimore and Ohio railroad company, which was said to be indebted to the said North-western Virginia railroad company, and required the Baltimore and Ohio railroad company to appear at the then next April term of said court to answer the said suggestion. On the 3d day of February, 1864, a copy of this summons was delivered to an agent of the Baltimore and Ohio railroad company at Par-kersburg.

On the 15th day of April, 1864, the Baltimore and Ohio railroad company filed its answer in the said court by which it denied that it was in any manner or form indebted to the said Forth-western Virginia railroad company, that it had not in its possession or under its control any money, dioses in 'action or other personal effects belonging to the said Forth-western Virginia railroad company liable to the said execution, or on which the said Wilson’s fieri fiadas was a •lien.

Upon the filing of this answer or during the term at which it was filed, Wilson suggested that the Baltimore and Ohio railroad company had not in its answer fully disclosed the debts clue by it to, or effects in its hands of, the said Forth-western Virginia railroad company, and on motion of the said Wilson it was ordered that a jury be empannelled to inquire as to such debts and effects. A jury was after-wards sworn in said court on this order, which found that the Baltimore and Ohio railroad company had not fully disclosed by its answer its liability under the suggestion and found a liability to the amount of the plaintiff’s execution against the Forth-western Virginia railroad company, on which finding of the jury the court rendered judgment. The Baltimore and Ohio railroad company feeling itself 'aggrieved by this judgment has obtained a supersedeas and brought the case here to be reviewed. On the trial of the cause before the jury the defendant, now the plaintiff in error, objected and excepted to three different rulings of the court and obtained from the court bills of exception Fos. 1, 2 and 3, and, after the verdict of the jury was rendered, asked for a new trial, which was refused, but at the instance of the defendant the court certified the facts proved on the trial which are contained in defendant’s bill of exceptions Fo. 4. The first cause of error assigned is, that the court erred in permitting the judgment and certificate of the docketing thereof in the county court mentioned in the first bill of exceptions, to be given in evidence to the juiy. By reference to bill of exceptions No. 1 it appears that the plaintiff below gave in evidence to the jury, without objection, his suggestion and the summons thereon together with his execution bearing date on the 4th day of January, 1864, and described in the said summons, and then offered to read to the jury a judgment in the name of the said Thomas D. Wilson' against the North-western Virginia railroad company, rendered on the 13th day of November, 1858, with a certificate showing that it was docketed in the clerk’s office of the county court of Wood county, on the 24th day of May, 1859. To the reading of said judgment and certificate of the docketing of the same in evidence to the jury, the defendant objected because the suggestion in the case was of a lien created by the fieri facias issued on the 4th day of January, 1864, and it was not competent to charge the defendant with liability by reason of any other lien than that of the fieri facias of January 4th, 1864; but the court allowed the judgment and certificate showing the docketing of the same to be given in evidence to the jury, and the defendant excepted. I cannot see that it could prejudice the defendant in any way to allow the judgment itself to be given in evidence to the jury as it was, although it was probably not necessary to enable the plaintiff to make out his case that it should go in evidence to the jury. There was, therefore, no error in allowing it to be given in evidence. This is a suggestion under the tenth section of chapter 188 of the Code of Virginia, to fix a liability on the defendant by reason of the lien of the fieri facias of the 4th day of January, 1864, under the third section of the same chapter. The first question then attempted to be raised by this bill of exceptions is whether or not the plaintiff can reach property or effects through his suggestion by virtue of any other lien than the lien of the execution described in his suggestion. A judgment at common law is not a lien on personal estate or goods and chattels, but at common law a fieri facias was a lien on all goods and chattels capable of being levied on from its date, and it is still so as between tbe parties and their personal representatives. But under section 11 of chapter 187 of the Code of Virginia, as well as under the English statute from which I suppose this provision is'copied, as against purchasers'for valuable consideration without notice and creditors, the writ shall bind what it may be levied on only from the time that it is delivered to the officer to be executed. This section provides that the writ may be levied as well on the current money and bank notes as on the goods and chattels of the person against whom the judgment is, but it is only a lien as long as it is capable of being levied. I apprehend that neither under the common law nor under this section was a fieri facias a lien upon choses in action.

For the purpose of enlarging the operation of the lien of the fieri facias and keeping alive liens created by the fieri facias under the law then existing, the third and fourth sections of chapter 188 of the Code were enacted. Section 3 of chapter 188 of the Code, page 777, provides that “ every writ of fieri facias hereafter issued shall in addition to the effect which it has under chapter 187 be a lien from the time that it is delivered to a sheriff' or other officer to be executed, upon all the personal estate of or to which the judgment debtor is possessed or entitled (although not levied on nor capable of being levied on under that chapter,) except in the case of a husband or parent such things as are exempt from distress or levy, &c.,” “and except that as against an as-signee of any such estate for valuable consideration, or a person making payment to the judgment debtor the lien by virtue of this section shall be valid only from the time that he has notice thereof. This section shall not impair a lien acquired by an execution creditor under chapter 187.” The fourth section of the same chapter provides that, “ The lien acquired under the preceding section shall cease whenever the right of the judgment creditor to levy the fieri facias under which the said lien arises, or to levy a new execution on his judgment, ceases or is suspended by a forthcoming bond being given and forfeited, or by a supersedeas or other legal process.” It is manifest that it is by virtue of the provisions contained in this third section that the fieri facias of January 4th, 1864, is a lien on the “personal estate” of the judgment debtor in the hands of the defendant unless it is a lien by virtue of some of the stay laws passed during the war. Under the third section of chapter 188, the lien of the fieri facias operates from the time it is delivered to the sheriff or other officer, on all of the personal estate of or to which the judgment debtor is at that time possessed or entitled, and not upon the personal estate of or to which he was before that time possessed or entitled. The office of the fieri facias is to create the lien and then to enforce the lien created by itself, but not to enforce liens created in any other way. The liens created by the several stay laws on the personal estate of judgment debtors are more complete than those created under the third section of chapter 188, referred to, but the several acts creating them are silent as to how they are to be enforced. They certainly cannot be enforced by writ of fieri facias, and I suppose as the law now is such liens can only be enforced in equity, there being no remedy at law. It appears to me plain that the plaintiff in the case under consideration was confined to the lien of the fieri facias described in Ms suggestion, and that he could not aid the lien of the fieri facias by proof of a lien under any of the stay laws.

Therefore, I think it was not right to allow the recordation or docketing of the j ndgment, as described in bill of exceptions Ho. 1, to be given in evidence to the jury as the only effect such docketing could have in this case would be to create a lien under the stay laws, but, as in bill of exceptions Ho. 1, the defendant objected to both the judgment and the certificate of the docketing thereof going in evidence, and as the judgment was proper evidence, the court committed no error in overruling the objection. Day vs. Roth, 18 New York Rep., 448.

The second cause assigned for error is that it was error to allow the docketed judgment to be read in evidence to the jury under the circumstances named in the second bill of exceptions. The second bill of exceptions is precisely like the first, except that the defendant objected and excepted to the docketed or recorded judgment being given in evidence, and did not object or except to the original judgment going in evidence. This bill of exceptions contains also the further fact that it was announced by plaintiff’s attorneys, that they did not seek to recover by virtue of any other lien than that created by the fieri facias of the 4th day of January, 1864. I cannot see that this declaration of the attorneys could make evidence proper that was otherwise improper. It was not right to allow the docketed judgment to go in evidence to the-jury because it was evidence of alien under the stay laws, other and distinct from the lien of the fieri facias of January 4th, 1864, to which the plaintiff was confined by his suggestion as was stated when considering the first cause of error.

It appears from this bill of exceptions that the defendant made objection to the giving of this, docketed judgment in evidence after the objection-made in the first bill of exceptions had been overruled, and after the judgment therein named had been read in evidence to the jury, but before the certificate of the docketing of the judgment was read in evidence. I think, therefore, that the court did err in allowing the certificate of the docketing of the judgment to be read in evidence.

The third cause of error assigned is that it was error to allow the fieri facias of the 10th day of December, 1858, to go in evidence, under the circumstances disclosed in the third bill of exceptions. The third bill of exceptions shows that the execution of December 10th, 1858, was given in evidence after the documents mentioned in the first bill of exceptions had been put in evidence. It does not appear from the third bill of exceptions that the execution of December 10th, 1858, was ever a lien on the personal estate of the ÍTorth-western Virginia railroad company under the third section of chapter 188 of the Code, because it does not appear that it was delivered to a shei’iff or other officer to be executed. If there had been a lien created by it, it would have been a lien other and distinct from the lien of the fieri facias of January 4th, 1864, which the plaintiff was endeavoring to enforce by his suggestion, and could not have been given in evidence to prove such lien. If the execution of December 10th, 1858, had been a lien, such lien might still be enforced by suggestion under it. See Puryear vs. Taylor, 12 Gratt., 401. But as it created no such lien, and was a part of the record of the case of Wilson vs. The North-western Virginia railroad company it could not be to the prejudice of the defendant that it was given in evidence, though the plaintiff to make out his case need not have given it in evidence.

The fourth ground of error assigned is that the court erred in refusing to set aside the verdict and grant a newr trial because the verdict was contrary to the evidence and the law of the case, and to the instructions of the court itself. To have enabled the plaintiff to recover on his suggestion it was incumbent on him to show that there was á liability on the defendant below by reason of the lien of the fieri facias of the 4th day of January, 1864. From the suggestion and the summons thereon, as well as from the facts proved, the liability sought to be fixed on the defendant was, by reason of the supposed indebtedness of the defendant to the Uorth-western Virginia railroad company, the judgment debtor. The indebtedness of the defendant to the judgment debtor, if any such indebtedness existed, was a mere chose in action, and the fieri facias of January 4th, 1864, for the reasons heretofore given was a lien upon it only under section third of chapter 188, and then only from the time that it was delivered to a sheriff or other officer to be executed. It does not appear from the facts in the case that this execution was at any time delivered to any sheriff or other officer to be executed, so that there was not by reason of the lien thereof any liability on the defendant, though the defendant may have been indebted to the judgment debtor.

But if the fieri facias of January 4th, 1864, had created such a lien as would create a liability on the defendant if indebted to the judgment debtor, the facts certified prove clearly that the defendant was not indebted to the judgment debtor on or after the day of its date.

The plaintiff occupied no better situation than his judgment debtor would have occupied in a suit to recover from the defendant, the garnishee, a debt due such judgment debtor. Such being the ease, could the North-western Virginia railroad company, in any form of action, have recovered from the Baltimore and Ohio railroad company, on the facts here certified, the amount recovered by the plaintiff or any other amount? In the first place no question of usury can arise in this case because incorporate companies are exceptions from the operation of the usury laws. Code, chapter 57, section 38, page 337.

The facts taken in the most favorable light for the Northwestern Virginia railroad company show clearly, that instead of the Baltimore and Ohio railroad company being indebted to the North-western Virginia railroad company there was a large indebtedness the other way. It seems to me, therefore, that the court did err in refusing a new trial.

The fifth ground of error assigned is that the oath admin-isted to the jury was informal and irregular and not the oath required by the statute to be administered in such eases. Although the oath administered was informal, yet it was substantially the oath required by the statute, and could not have prejudiced the defendant.

The sixth and last ground of error assigned is that the judgment pronounced by the court upon the verdict found was irregular and improper and was not the order which the statute directs to be made in cases of this character. The judgment of the court is that the plaintiff recover of the defendant “ 7,331 dollars and 39 cents with interest thereon from the 1st day of February,. 1855, until paid, and 9 dollars and 90 cents costs, and his costs by him about his suit in this behalf expended.” Under the twelfth section of chapter 188, Code of Virginia, the person summoned on a suggestion shall be examined on oath. If it appear on such examination that there is a liability on him, the court may order him to pay any debts, or deliver any estate for which there is such liability, or pay the value of such estate to any officer whom it may designate, and the levy of an execution on such order shall he valid, although levied by such officer.

It is plain according to the strict letter of this section that if a liability appears on the examination of the person summoned, the courtis to order him to pay any debts or deliver any estate for which there is such liability, or pay its value to an officer designated by the court. By the thirteenth section of the same chapter it is provided that if it be suggested that the person summoned has not fully disclosed his liability the proceedings shall be according to the 18th and 19th sections of chapter 151, Code of Virginia. The juiy in this case was empanneled under the 19th section of the last named chapter. This section provides that “the court shall cause a jury to be'" empanneled without any formal pleading to inquire as to such debts and effects, and proceed in respect to any such found by the jury in the same manner as if .they had been confessed by the garnishee.” Sections 11, 12, 13, 14, and 15, of said chapter 188, and sections 17, 18, 19 and 23, of said chapter 151, are intended to provide for attachment or judgment creditors process for the recovery and application of debts due to their debtors by third parties, and are therefore in pari materia, and must, according to the well established rule of law, be taken together as if they were one chapter. Bacon Ab. title, Statute. Canal Company vs. Railroad Company, 4 Gill and Johns, p. 5 The sections here referred to in chapter 188, were enacted subsequently to the section referred to in chapter 151, and give substantially the same remedy in relation to execution liens, that the sections in chapter 151 give in relation to attachment liens. It is another well established rule of law that when an action founded upon one statute is given by a subsequent statute in a new case, everything annexed to the action by the first statute is likewise given. According to either of these rules, the judgment on a verdict of a jury rendered under the said 19th section, must be the same where the debt of the plaintiff is established, whether the proceeding be upon attachment or suggestion. If the ver-diet of tbe jury in this case had been rendered against the defendant as garnishee in an attachment, the judgment rendered upon, the verdict would be right.

* Joseph vs. Pyle and wife. There is, therefore, no error in the form of the judgment in thiB case.

The judgment will have to be reversed with costs to the plaintiff in error, and the cause remanded to the circuit •court of Wood county for a new trial to be had therein.

The other judges concurred.

Judgment E-eversed.

See ante page 449.