Saunders v. James

9 S.E. 147, 85 Va. 936, 1889 Va. LEXIS 108

• Court: Supreme Court of Virginia
• Decided: March 28, 1889
• Status: Published

Opinion

Fauntleroy, J.,

delivered the opinion of the court.

This suit was instituted by R. M. Saunders, .a judgment creditor of A. James, Sr., to avoid and set aside a prior judgment confessed by the said A. James, Sr., in favor of a son, A. James, Jr., on the 2d day of April, 1884, for a debt of $800, evidenced by the note of the firm of A. James & Son, dated the 2d day of April, 1882.

The bill, which is a bill for discovery and relief, charges that “the said note for $800, and the judgment on it, are wholly without valuable consideration; and but a device to delay, hinder, and defraud the said R M. Saunders and other creditors of the said A. James, Sr., in the recovery of their just debts; that no such debt was in fact due by the said A. James, Sr., to his son, Alonzo; that it is fraudulent in fact and in construction.” The defendants are called upon and required to answer, upon oath, all the allegations of the bill; and are specially and specifically required to make discovery as to the consideration for the note upon which the judgment was confessed.

The answers of the defendants (appellees) set forth the facts, that A. James, Sr., and Gr. E. James were partners in the mercantile business under the firm name of A. James & Son ; that, in October, 1881, A. James, Jr., sold a vessel for $2,300, of which amount he deposited for safekeeping with A. James & Son the sum of $1,060; that, of this deposit, Gr. E. James, as the managing member of the firm of A. James & Son, used $800 in and about the business of the firm; and that this was the $800 for which the appellee, A. James, Sr., confessed the judgment in question. Every allegation of the bill is clearly, specifically and unequivocally answered; and the answers are pertinent and fully responsive.

The cause was heard in the circuit court “ upon bill, answers, with replications thereto, exhibits, and argument by counsel; on consideration whereof the court, being of opinion that the plaintiff has wholly failed to sustain the allegations of his bill, doth adjudge, order and decree that the said bill be dismissed,” with costs, etc.

We are of opinion, upon a careful inspection of the record, that the charge of fraud, made in the appellant’s bill, is utterly unsustained by evidence; and the charge being positively denied in the answers of the appellees, which answers are responsive and unequivocal, and furnish detailed statements of the facts and circumstances connected with the execution of the note, and the confession of the judgment upon it, which are satisfactory and reasonable, the complainant’s hill was properly dismissed.

There is no error in the decree of the circuit court appealed from, and it must he affirmed.

Decree affirmed.