Crawford v. Fickey , 41 W. Va. 544 ( 1895 )

Brannon, Judge:

In a suit in equity in the Circuit Court of Randolph county, brought by George W. Yokum, commissioner of school lands, against Fickey and Thomas, to sell certain lands as forfeited for the benefit of the school fund, Fickey and Thomas filed a petition asking leave to redeem the lands, and paid into court a sum of money to effect such redemption; and a decree was made allowing them to redeem, and ascertaining that Fickey and Thomas had paid in more money than necessary for the redemption, and directing Bushrod W. Crawford, general receiver of the court, to pay out of the fund which had gone into his hands a certain sum to the state, a certain sum to the county, certain sums to the district of Huttonsville, and one hundred and sixty two dollars and thirty three cents to Fickey and Thomas. An appeal from that decree was taken, and it was affirmed by this Court. Yokum v. Fickey, 37 W. Va. 762 (17 S. E. 318). These sums added make more than the receiver received by charging him with interest; and later, while the said appeal with supersedeas was pending, the receiver obtained from the court an order in the case simply relieving him of interest, not saying how much interest or how much he was to pay Fickey and Thomas; but as he received one thousand, six hundred and sixty dollars and eight cents, and stated to the court that he had paid the sheriff one thousand, five hundred and seventy one dollars and sixty seven cents, it wmuld be claimed that the sum of one hundred and sixty two dollars and thirty three cents, going to Fickey and Thomas would be greatly reduced. After the affirmance of the first decree by this Court, Fickey and Thomas, disputing the validity of the order releasing interest, issued an execution against Crawford for the amount which that decree had required him to pay them, with interest from the date of the decree; and Crawford instituted a motion to quash this execution, and it was quashed, and Fickey and Thomas appeal.

The question is: Does the order releasing the receiver from interest operate to modify the decree first entered, directing the receiver to pay out certain specific sums to certain parties, including one hundred and sixty two dollars and thirty three cents to Fickey and Thomas? If it does, waiving its indefiniteness, then quashing the execution was right, as it had no decree to support it for the amount it called for; but, if it was ineffectual to change the former decree, the action of the court quashing the execution was wrong. The provision of the decree directing the receiver to pay Fickey and Thomas a certain sum was a personal decree, on which execution could issue, and which would be alien on land. Rickard v. Schley, 27 W. Va. 617. Therefore, that decree was a final decree in favor of Eickey and Thomas for this money. In volume 2, p. 327, of that valuable recent work, Encyclopedia of Pleading and Practice, the rule, based on authorities from every quarter, is definitely stated, that, “where an appeal has been perfected, the jurisdiction of the appellate court over the subject-matter and the parties attaches, and the trial court has no power to render any further decision affecting the rights of the parties in the cause until it is remanded.” It is removed to the appellate court. The lower court has lost jurisdiction. Dunbar v. Dunbar, 5 W. Va. 567; M’Laughlin v. Janney, 6 Gratt. 609; Elliott, App. Proc. § 541; Cralle v. Cralle, 81 Va. 773; 1 Black, Judgm. § 243. Therefore the circuit court has lost or been ousted of its jurisdiction, and its further action to prejudice the judgment is void, except to preserve the property. It was void for the further reason that a final decree had been rendered, and the term closed, and no order affecting prejudicially the right of a party under it could be made. Opinion in Morgan v. Railroad, Co., 39 W. Va. 19 (19 S. E. 588) citing Ruhl v. Ruhl, 24 W. Va. 279. In impairing right to interest, the judgment is materially changed, as it is a part of the judgment as well as principal. Cecil v. Deyerle, 28 Gratt. 775; Kent’s Adm’r v. Kent’s Adrn’r, Id. 840; Pretlow v. Bailey’s Ex’r, 29 Gratt. 212.

The order to the receiver to pay, being a final decree, in which its beneficiaries hadan interest, could it be affected in this way without notice? Surely not. That is another reason for its nullity. And, still further, after affirmance of the decree, it was, as originally entered, final and unchangeable, because res judicata, whether that decree was right or wrong. Davis v. Henry, 13 W. Va. 230, point 6. The af-firmance in this case being absolute, I am not prepared to say that it did not operate upon the entire decree and all parties, though Crawford was not summoned on the appeal. Newman v. Mollohan, 10 W. Va. 488, and opinion page 501, stating the harsh principle relating to affirmance. See Ferguson v. Millender, 32 W. Va. 30 (9 S. E. 38) and cases; Renick v. Ludington, 20 W. Va. 511, 537. It was error, plainly, to charge the receiver interest, as he is not chargeable with it as of course, but only under special cir eumstances, to be shown by him who would charge him. See Richardson v. Hoyt, 60 Iowa, 70 (14 N. W. 122); Daniel’s Ex’r v. Wharton, 90 Va. 584 (19 S. E. 170); Darby v. Gilligan, 37 W. Va. 59 (16 S. E. 507). But this error can not be reached now.

But the point is made by counsel that the receiver was no party to the suit in which the decree against him was made, and no notice was given him, and it is void as to him. He is the officer of the court. Must ho have notice before any order can be made requiring him to pay ? Of course, courts should be careful, before decreeing him to pay fixed amounts, to see that they are in his hands. But he is always before the court. The Supreme Court of the United States has held that a receiver is so far a party that he can appeal from a decree ordering him to pay a specific sum as due from him. Hinckley v. Railroad Co., 94 U. S. 469. He is thus a party as to that decree, like a purchaser at a court sale. And, also, that the other side can appeal. Hovey v. McDonald, 109 U. S. 150 (3 Sup. Ct. 136). So How v. Jones, 60 Iowa, 70 (14 N. W. 193); High. Rec. § 819b.

These principles repel the idea that the first decree against the receiver was void. It was valid until reA’ersed, and could not be changed as it was by subsequent order. That order itself was so indefinite, not releasing any sum, not taking away Fickey’s and Thomas’ decree, not prorating the interest, that, if not invalid, it would likely be ineffectual to affect the former decree.

As the first decree was standing as res judicata to support the execution, and the order releasing interest void, when the motion was heard, there was error in sustaining the motion to quash the execution, and the judgment is reversed, and the motion dismissed.