McCoy v. Allen

Green, President,

delivered the opinion of the Court.

Syllabus 1. The first enquiry presented by this record is: Was Robert W. Cox, the appellant, a party to the original cause ? He certainly was not made a party by the original bill, but by the first decree in the cause on the defendant’s motion “he was made a party defendant, and it was ordered that process issue against him.” And process was issued against him, and was duly served on him, to answer the bill. In the language of the court in Mosely v. Goodie, 7 Leigh 226 , slightly modified, “He was not named in the bill; there is no allegation anywhere in it which bears upon, or in any manner refers to him, nor is any decree prayed against him, or in the usual language praying against confederates. It is a distinct charge against another person; and it prays distinctly and simply a decree against her land. He therefore seems to me not to be a defendant in any proper sense of the term. No process is prayed against him by the *731 bill; and there being no charge against him, and no decree against him or in reference to him prayed lor, he' had nothing to defend. If the bill had been treated by the court as confessed, it would not alter the case, as nothing was charged against him, nothing could be confessed, and nothing could be decreed against him. In short, a decree against one not named in the bill, and in no wise comprehended in its general allegations, is a nullity. He is not bound by it, and has therefore no no necessity to contest'it or answer it. If the court had not ordered the process to be served on him, the plaintiff might have been subjected to an action for vexing him by the service, when he was in fact not a party defendant. He could not, as required by the summons, file an answer when nothing was demanded of him by the bill he was to answer. It is a solecism to speak oí his answering a bill in which he is not named, and in which he does not by inference appear to have any interest or concern.”

In that case not only was the subpoena served on this defendant, but the conditional decree was also served on him, yet he was regarded for the reasons above stated no party to the suit, and any decree against him was held by the Court of Appeals of Virginia to be a mere nullity. This case was cited approvingly by this Court in Newman v. Mollohan, 10 W. Va. 503 . We cannot presume that one, who does not appear to have been a party, had his day in court. Ford v. Doyle 37 Cal. 346 .

Syllabus 3. But it is suggested that the first decree in the cause, by ordering a commissioner to “ascertain what liens were on the property mentioned in the bill, with their priorities and respective amounts,” made the bill a creditors’ bill; and as Robert W. Cox, administrator of Michael Cresap, hada lien on this property, it made him and his trustee, Zachariah Jacobs, plaintiffs or quasi parties to this cause. It is true a judgment-creditor occupying the position of the plaintiff in this cause may make certain other judgment-creditors quasi parties plaintiff *732 with him by suing on behalf of himself and all other judgment-creditors, when the bill states the facts necessary to be stated in a creditors’ bill, that is, the existence of these other judgment-creditors, though their names be unknown, and by praying that they may by order of publication be convened, and their judgments ascertained and audited. If the bill be of this character, though not a formal creditors’ bill, that is, though the plaintiff has failed in the bill formally to state that he sues on behalf of himself and all other judgment-creditors; still if this appears by the frame of the bill, a decree, directing all judgment-creditors to be convened before a commissioner by order of publication, and their debts to be audited, would make such a bill a creditors’ bill and would make all other judgment-creditors quasi parties to the suit. See Dunson’s adm’r v. Alsop et al. 27 Gratt. 229 . But neither the bill in this case nor the decree is of this character ; and, even if they had been, the decree directing all liens to be audited could not make any one but judgment-creditors like the plaintiff quasi parties plaintiff. It could not make a trustee, who held the legal title to the land, a party, nor the cestui que trust in a deed of trust. Only the undefined class of judgment-creditors holding liens similar to the plaintiff can be made in such a case qua-si parties to the cause. If the trustee holding the legal title to the land and his cestui que trust are not made formally defendants, they can not by any such decree be made quasi parties, and can not be bound by any decree of the court. See Neely v. Jones et al. infra 625.

Robert W. Cox, administrator of Michael Cresap, was not in this case a judgment-creditor. His trustee, Zachariah Jacobs, held the legal title to the bond sought to be subjected; and the court could render no decree affecting his rights, unless they had been made formally defendants; and no publication made by a commissioner calling on lienors to present their claims, or service of notice by him on them, could have made them quasi par *733 ties to the suit, so that their rights would be affected by a decree of the court.

We need not enquire whether the defendant, Cornelia E. Allen, had a right to file such a bill as she did file, calling it a cross-bill. She seems herself to have abandoned it, as she never had any process issued upon it, or served on the defendants.

When the decree therefore of January 30, 1875, was . entered, Robert W. Cox, the appellant, was not a party to this cause, either in his individual capacity, nor as administrator of Michael Cresap; and the court had no authority to render any decree against him, even if the commissioner’s report or depositions in the cause had shown that he had so demeaned himself, that in a proper suit he might be liable to have a judgment or decree against him. It is therefore unnecessary to consider the various assignments of error in the bill of review and in the petition for an appeal, which are based on the assertion, that on the commissioner’s report and facts proven in this case substantial justice was violated by rendering a decree against the appellant, in ordering a release of his deed of trust and in adjudging his debt to be satisfied. None of these questions were properly before the court or could properly have been decided by it; for the court had no right to bind him, as administrator of Michael Cresap, by its adjudication that the debts secured by the deed of trust to Michael Cresap had been discharged, or to order any release of this deed of trust to be executed. Yet all this was done by this decree of that date. The whole of this decree therefore is a mere nullity, except that part of it which dismissed the suit as to the complainant with her consent.

*734

Syllabus 2.

*733 When then the execution was issued on this decree, Robert W. Cox, instead of filing a bill of review and obtaining an injunction, might have moved to quash the execution, as based on a decree which was a nullity; and it would have been the duty of the court to have quashed it. If the special commissioner, R. G. Barr, *734 had executed a release of this deed of trust, such release ' would have been entirely inoperative, because the decree authorizing it was a nullity. But though it was unnecessary for the appellant to seek to have this decree reversed on a bill of review, or by appeal to this court, yet he had a right to have it reviewed or reversed in either of these ways. See Powell on Appellate Proceedings, pp. 264, 265; Monroe et al. v. Bartlett et al., 6 W. Va. 444 ; Johnson v. Young, Carson & Bryant, 11 W. Va. 683 -684, These two cases were appeals to this court from decrees, which were nullities for want of jurisdiction by the court or judge rendering them. But if the decree was a final decree, as in the case before us, and the proceedings on their face show, as they do, that the party complaining in the bill of review was no party to the suit, then the decree would be based on an error of law, and he would have a right to-have the decree reversed on a bill of review. For all the authorities agree, that one of the causes, for which a bill of review will lie, is error of law in a final decree on the face of the proceedings. See Bowyer v. Lewis, 1 H. & M. 554; Nichols v. Heirs of Nichols, 8. W. Va. 183.

In the cases of Monroe et al. v. Bartlett et al., 6 W. Va. 441 , and in Johnson v. Young, Carson and Bryant, 11 W. Va. 683, 684 , this court held, “that they would not dismiss the appeal, because the decrees were void, but would take jurisdiction of the cause and decrees so far, and so far only, as to reverse the decrees and remand the cause to the circuit court to be further proceeded with.” But in those cases, where the judge or court rendered its decree, it had no authority to render any decree at all; and this court could only set aside the decrees thus rendered without authority, and remand the cause to the proper court to be proceeded with. To have, gone further, would have been to exercise original jurisdiction by this court. But in the case before us the court below, when it rendered the decree of January 30, 1875, complained of, had a right to render a decree be *735 tween the parties to said suit, and so far as it did this, it did not exceed its authority, but it erred in going further and rendering a decree against a person who was no party to the cause. This must be reversed and annulled; and the decree between the parties, which the court had a right to render, must be approved, if right, and corrected, if wrong.

This portion of the decree is to some extent erroneous. It dismisses the bill as to the complainant, with her consent; but as the whole object of the suit had been affected, it would have been more proper to have dismissed the bill absolutely. The decree or order of June 24, 1876, ought not to have been entered. It abated the bill of review as to Catharine McCoy, and decreed that she should recover her costs against the plaintiff in the bill of review. She had never appeared in this suit, and had incurred no costs, and was besides a proper party to the bill of review, being the plaintiff in the original suit.

We are therefore of opinion, that the decrees in the cause of Cox v. Allen et al., rendered on June 24, 1876, and on January 21, 1878, should be reversed, set aside and annulled, and that the appellant, Robert W. Cox, should recover of the appellee, Cornelia E. Allen, his costs expended in this court, and this Court should then render such decree as the court below should have rendered on this bill of review, that is, overrule the demurrer, and decree that the plaintiff in the bill of review recover of the defendant, Cornelia E. Allen, his costs expended in the said municipal court of Wheeling, and reverse the decree rendered in the original suit on January 30, 1875, and with the consent of Catharine McCoy, she having been paid her debt and all costs, the said original bill should be dismissed, it being unnecessary to direct an answer to be filed, as all the facts are matters of record in the original suit.

Judges ETaymond and Johnson Concurred.

Decree Reversed .