Record No. 2071.

\

Record No. 2071.

- In the -Supreme Court of Appeals of Virginia

At Richmond

AET~A CASUALTY and SURETY COHPAN"Y, Plaintirt' in Error

vs.

J RVING \VII.ALEY, :\IARGAH·ET ·wiL\ ...~EY and HARRY PIPER. Defendants in En >1.,

--------.r-·-·-··~·~·~·-·---------FRoM THB CoRPORATION CoUBT FOB THE CITY OF BmsToL, VA. ... ' ....

''The Briefs shall be printed in t) pe not less in size than small pica, and shall be nine inches in length and six inches in width so as to conform in dimensions to the pl inted records along with which they are to be bound, in acc.ordance with the Act of Assembly ap-proved March 16th, 1903; and the Clerks of this Court are directed not to rece ve or file a Brief not conforming in all respects to the af Jrementioned requirements.''

The foregoing is printed in small pica type for the information of counsel.

M. B. W \ 'l'TS, Clerk.

JohD .A.. Cook. PrtDter. WythevUle, Va.

IN THE

Juprtmt ~ourt of ~pptals of ~irgiuia At Richmond

Record No. 2071

AETNA CASUALTY and SURETY COMPANY, Plaintiff in Error

vs.

IRVING \VH1\.LEY, ~IARGAI-tET WHALEY and HAR·RY PIPER, Defendauts in Error.

PETITION

To the Honorable Justices of the Supreme ()ourt of Appeal~ of Virginia:

Your petitioner, Aetna Casualty and Surety Company, respectful y show·s unto your Honors that it is aggrieved by a final order of the Corporation Court for the City of Bristol, Virginia, entered on the 22nd day of J nne, 1938, dis1niss·

, ing plaintiff's Notice of ~lotion for Judg·rr1ent, refusing to treat th~ sa1ne as a Bill in Equity and allow plaintiff to

1 a1nend to that end, and entering judgment for the defendants.

2* *A certilied copy of the record is attached hereto and made a part of this petition.

2 Supreme Court of Appeals of Virginia

FACTS.

The facts of the case are undisputed.

1. On the 28th day of March, 1931, the Court of Appeals of Tennessee at l(noxville put do·wn a final order (set out in full, R. 36), part of which reads as follows :

''It is therefore ordered, adjudged and decreed by the Court that the decree of the Cl1a.ncellor be, and the same is, affinned, the injunction dissolved, and the suit dismissed; and that the defendant, E. ~I. ~filler, R-eceiver have and recover of the eornplainants, Irving WhaJey, ~fargaret \Vhaley and ~arry Piper as principals and the Aetna Casualty and Surety Company of I-Iartford, Connecticut, as surety on the injunction bond, the sum of $515.50 as decreed by the Chancellor, June 14, 1930 with interest thereon to.this date, March 22, 1931, in a1nount $24.39; making a total recovery of $539.89 together with all the costs of the cause in this court, and the court belo'v for all of wh:eh let execution issue.''

2. The Judgment Doeket of the Court of Appeals of rrennessee sho·w·s the following entrjes (R. 38) :

''Received of B. S. Gore eheck No. 3380, ·First National Bank, Bristol, Tenn.-Va. for $89.15 in payrnents of opposite costs.

''Received of S. E~ Cleage, Clerk of the Court of Ap-3* peals '~of Tennessee, through the Aetna Casualty and

Surety Cmnpany of Hartford Conneticut, the sum of $545.85 covering judg1nent in the Court of 1\.ppeals, March 31, 1931, in the case of Irving· Whaley, et al vs. E. 1\L l\Hller, Re· ceiver, et al, of ,$539.89 a.nd interest to date of $5.96.

"rrhis June lOth. J 9~1. E. lVL MILLER,

R.eceiver. By: B. S. GORE,

SoHcitor. ,.,

3. The Aetna Casualty and Surety Company, at the time H paid this judg~nent, received the following (R. 3):

''For and in consideration of the payment of $635.00 covering the 'vithin judgment of $539.89, with interest to date and the cost of $89.15. I hereby assign the within judgment,

Aetna Casualty and Surety Co. vs. Irving \Vhaley, et al 3

without recourse, to the Aetna Casualty and Surety Company of I-Iartford, Connecticut.

''This June 9, 1931. ''E. M. :MILLER,

Receiver. ''By B. S. GORE,

Solicitor.''

4. On February 21, 1938 at the insistance of the Aetna Casualty and Surety Company, execution 'vas issued out of the Ulerk's Office of the Court of Appeals of Tennessee in the name of E. :.M. Miller, Receiver, ag-ainst Irving Whaley, ~far·

garet Whaley and Harry P ~per, and levied on real 4* estate in Tennessee, of record in the *nan1e of Irving

'Whaley and ::Margaret Wha1ey. This execution was quashed in motion of the said defendants. The motions to quash and the order of the Court arP. set out, R. 30-33, 24. ·

5. Plaintiff brought suit by Notice of Motion for J u4gment in the Corporation Court at Bristol, Virginia, against thE}. "Whaleys and Piper on the assignn1ent set out in Paragraph 3 above. The defendants filed numerous pleas and n. demurrer. In substance of the defendants pleadings set up the foP owing defenses:

(1) The judgment was satisfied by payment of it. by the plaintJff (R. 5).

(2) The five year statute of limitations (R. 7, 13, 20).

(3) Res judicata by virtue of the action of the Tennessee Court of Appeals in the J\Iotion to Quash (R. 22).

( 4) R.elease of the defendant Piper through failure of the plaintiff to proceed against the Whaleys before proceeding against him as allegedly required by a Tennessee Statute (R. 9).

(5) Plaintiff's assignn1ent invalid for "rant of authority of judgment creditor's attorney to assign (R. 15).


6. The Lower Court heard the case on the pleadings and exhibits, without tl1e intervention of a jury, there being no disputed questions of fact involved, and rendered judgment for the defendant. The Court's final order app~ars in the record at page 41.

5* *ASSIGNMENTS OF ERROR

The Corporation Court erred in refusing to treat the pain tiff's Notice of ~lotion for Judgment as a Bill in Equity, with leave to amend if necessary, for the purpose of allowing the plaintiff to be subrogated to all rights of the judgment ereditor, E. 1f.. Miller, Receiver (R. 41) and in refusing to enter ~udgment for the plaintiff for the amount sued for.

PRELIMINARY ANALYSIS.

The facts of this case are not in controversy. The sole question is a question of law. This issue may be stated:

J.s a sud·ety who pays off a judgment rendered against hint and his principal subrogated to all the rights and re1nerffies of the judgm~ent creditor, incl'ttding the 1·ight to enforce the ·ju.dgn~ent by appropr:ate action in a foreign jurisdic t:.on?

.. Counsel for plaintiff contend that the issue should be anRwered in the affinnative. In their argument counsel will discuss the foJl owing points in the order set out:

First: - Pleas filed by the defendants;

Second: Plaintiff's right to subrogation; and

Third: 'V1ult Statute of Limitations applies¥

ARGIDfENT

1. PLEAS FILED BY THE DEFENDANTS.

(1) Satisfaction through payment by the plaintiff.

6* *Subrogation is purely a creature of Equity and it goes witl1out saying that payment by the plaintiff regard-

Aetna Casualty and Surety Co. vs. Irving "\Vbaley, et al 5

less of its effect on the judgment did not destroy the judgment in so far as the princip,es of subrogation are involved.

(2) The five year statute of limitations .

. This plea will be discussed under point three of the argu, ment.

(3) Res judicata by virtue of the action of the Court of Appeals of Tennessee on the motion to quash the execution issued therein.

The Circuit Court of Appeals of Tennessee sustained the defendant's motion to quash the executions issued at the insistence of the plamtiff (R. ,24). The question of right to subrogation was not raised nor was the question of motion for judgment over as provided by Tennessee statute raised, since the Court had no jurisdiction of such a motion if it had been made. Such a motion must be made. in a court of original jurisdiction.

Ward vs. Thomas, 42 Tenn. (2 Coldw) 565.

The action of that court is clearly exp"'ained by the holding in Tennessee that a surety who pays a judgment and allows it to be marked safsfied cannot issue an execution on it.

Uzzell vs. Mack, 4 I-Iumph. 319, 40 Am. Dec. 648. Miller vs. Porter, 5 Humph. 294. Biltick vs. Wilins, 7 Hersk, 309, 310.

7* "" ( 4) Release of the Defendant Piper through failure of the plaintiff to proceed against the Whaleys before

proceeding against him as allegedly required by a Tenn~ss_ee Statute.

Tennessee Code, Section 7526, provides as follows:

''Sec. 7526 SuTcty, how d ·.scharged by notice to c1·edito1" to sue. When any surety by bill, bond, covenant, or non-nego-

, tiahle note for the payment of money or note for specific artie- es, other than sureties of guardians, executors, administrators, or publi~ officers, or guarantors of negotiable paper, apprehends that his pr:ncipal is likely to become insolvent,

I or to migrate from the state, without previously discharging the debt or o·bligation, lle may, if the debt or security be due,

6 Supretne Court of Appeals of Virginia

by notice in wTiting, require the creditor to put it to suit. Un- · less within thirty days thereafter, the creditor conrmences an action, and proceed with the due diligence in the ordinary course of law to recover iludgn1ent for, and by execut~on to make the amount due thereon, he shaH forfeit the right which he "rould otherwise have to recover from the surety.''

9ounsel for Piper contend that the above section is applicable in the case at bar and that their letter to the plaintiff (R. 11) was such notice.

It clearly a1;>pears from the statute itself that it applies only before judgment. In the case at bar judgment was taken against the 1Vha1eys and Piper as principals and the plaintiff as surety. After the judg1n~nt was rendered Tennessee Code, Section 8889-a applies. This section provides as follows:

8* *"Where the judgn1ent or d~cree is against a principal and his surety, it shall be the duty of the officer hav

ing the collectior. ~hereof, to exhaust the property of the principal, both real and personal, ·before proceeding to sell the property of the surety.''

The plaintiff was endeavoring to comply 'vith this section when met by the defendants' motion to quash the execution.

(5) Plaintiff's assignment invalid for want of authority of the judgn1ent creditor's attorney to assign.

This plea needs no consideration since the plaintiff is here concerned only with its rjght of subrognfon, which does not depend in any way on an assignment.

2. PLAINTIFF'S RIGHT TO SUBROGATION.

V\Then carefully analyzed the legal question involved jn this case becomes comparatively simple, namely, what rights U.oes a surety have who has paid his principal's judgment debt?

Pomeroy's .Jurisprudence, Vol. 6, Sec. 924, p. 1508 answers the question very clearly as follows :

"Rights ~tpon u;hich su.b~·ogatio·n operates - The subrogee is, in general, entit1ed to stand in the shoes of the creditor,·

Aetna Casualty and Surety Co. vs. Irving vVhaley, et al 7

and to enforce every right which the creditor hin1self could have enforced so far as necessary to secure rein1bursement or contribution. This includes the r-fght to enforce the principal obligation itself, even tho it be dischat·ged at law, and to claim all of the incidents." (Italics inserted)

9':.: *Thus in the case at bar E. ~L Miller, Receiver, the judgment creditor, m;ght have enforced his judgment

in Virginia by appropriate action. (Both of the vVhaleys were and are residents of Virginia), and the plaintiff in the case at bar is seeking to enforce the judgn1ent in Virg!nia by virtue of his rjght to subr.ogation.

The lower court was of the opinion that subrogation applied only to liens. His Honor's opinion reads in part as follows (R. 42),

"The Court is of the opinion that the action as brought by the plaintiff is broad enough to ascertain any and all rights that the plaintiff has in this jurisdiction. The court 'vou,d be glad to treat the Notice of Motion as a Bill in Equity and to transfer the case to the equity side of its own n1otion,

. if plaintiff could indicate in any way the existence of a lien in Virginia, to which the plaint1ff n1ight be subrogated.''

It is submitted that the doctrine of subrogation is considerably broader than is conceived by the learned lowe-r court.

Counsel consider the case of Smith vs. Dnvis, 71 VV. Va., 316, 76 S. E. 670, 43 L. R. A. (N. S.) 614, to be very c~osely in point and "'iP quote from it at some length.

''It is established law that where a surety is compelled to pa.y a judgn1ent against the principal, the surety is entitled to he subrogated to all the rights unde.r the judgment. But in

this case appellee submits that since Dav:s owned 110

10* ]and at the tilne *the sureties paid the debt, the judg· ment cannot avai1 the sureties as to property there

rfter acquired by Davis. It is insisted that a surety who tS compelled to pay a judgment ag-ainst his principal is subrop.:ated to no rights under the judgment, unless it has already attached as a lien on land when the surety pays.

"The doctrine of subrogation has a much wider scopn than that to which appellee would restrict it. By it equity, not from considerations of contract, but out of natural jus-


tice, gives to one the place of another. 'It is a legal fiction, by force of which an obligation extinguished by a payment made by a third person is treated as still subsisting for the benefit of this third person, who is thus substituted to the rights, ren1edies, and securities of another. The party who is sufbrogated is regarded as entitled to the same rights, and indeed as constituting one and the sa1ne person with the creditor whom he succeeds.' Sheldon on Subrogation p. 2. Though Smith and others, as sureties of Davis, paid the judgment for him, equity treats the judgment as still existing for their benefit, and gives them everything in relation to it that Maxwe1l had. Now, what did Maxwell have by reason of his judg~nent against Davis 1 Clearly, whatever he could claim or get by the judgment, those who are subrogated to his rights therein can like\vise claim or get. Maxwell's rights by the judgment \Vere not confined merely to a particular time during the life of the judgment. His rights under the judgment 'vere coexisent with its life. As to real estate, the judgment in

the hands of Maxwell would become a lien on anv 11 * o'vned by Davis at *the time it was taken, or any a~-

quired by him as long as it was kept alive. ~y the stat· ute the judgrnent was good for ~Iaxwell as a lien on aU real estate to which the judgment debtor was 'possessed or entitled at or after the date of the judgment.'' Code 1906, chap. 139, p. 5. It is equally as good for those who are subrogated to Maxwell's rjghts. 11:axwell could enforce it as a lien on after-acquired property. So may those who, by the equitab1e doctrine of subrogation, stand in his shoes. Subrogation does not always 'merely give over ex·U,-t/;ing liens O'r secu·rities. It 1nay give over right-s and rem.ed'es as well. (italics inserted). One right which Maxwell had in the judgment was to enforce it against real estate acquired by Davis after the da.te of the judgment. The sureties, as subrogees, took over that right. Equity recognizes it in them, because s'mple justice concedes it to them. ~Iaxwell had a. remedy for the coJection of the debt by holding the judgment to reach any real estate that Davis might acquire. The subrogees have the same rem.edy for the collection of the debt, which equity, for their benefit, still considers unpa~d. '~he subrogee is, in general, entitled to stand in the shoes of the creditor, and to enforce every r'ght which the creditor himself could have enforced, so far as ·necessary to secure reimbursmnent or contribution. This inc,udes the right to enforce the principal obligation Hself,

.Aetna Casqalty and Surety Co. vs. Irving \Vhaley, et al 9

even though it be discharged at law, and to claim all the incidents of such obligation." 6 Pom Eq. J ur. p. 924.

12*' ""That the sureties of Davis have no right to hold and enforce the Maxwell _judgment as to after-acquired

property is not tena•ble. Again we say, whatever Maxwell could do with the judgment, the subrogees may do. To hold otherwise would not accord with that natural reason and justice which alone gives rise to subrogation. Long ago the right of subrogatio11 thqt we find here was recognized in a decision b~nding on us, wherein it was held: 'A surety in a forfeited forthcoming bond is a surety for the debts and when he pays it as such surety, he is entitled to all the ri_ghts of the creditor against the original <\~btor, subsisting at the time he became bound for the debt. And the judgment for the benefit of the surety so paying, is not extinguished, but tr·ansferred with all its obligatory force against the principal, and constitutes a legal lien upon his real estate owned at the date of the judgment or afterwards acquired.'' Hill vs. lllanser, 11 ·Gratt. 522.

3. WHAT STATUTE OF LIMITA1.,IONS APPLIES¥

It is asserled by the defendants that the statute of limitations governing .a right to seek reimbursernent or exonerat~on applies rather. than the statute of limitations governing the enforctuncnt of judgments. (It is here unnecessary to consider whether the Tennessee oT Virginia statutes apply since in either case the shorter statute governing reimbursement

and exoner.at"on has run and the longer statute govenl-13* ing judgmen.ts has not run). The *p.aintiff, on the

other ihand, contends that since the jud,gment creditpr might have sued on his judgment jn Virginia at .any time within ten y~rs~ that the plaintiff~ havjng been su'br~gated to this r~ght,. may ;Cxercise it within the same thne limit. We quote further from S1nitb. tl)S~ Davis, .supra;

~·In the hands of Maxwell the judgment WQIDd stand enforceab1e against any real estate of Dav:s for at least ten yeaTs. W-e hold that as to the f!ubrogees it was enfor.eeable

' f0r .a. liJ\:e period. The .ail.'g;ume.nt is made tha.t, .as to the sure· ties, the statute ,of J.imitations is fiv.e years., - the time in which they -cou 1.d sue th.e principal f.Gr the money paid on his account jby them. The fme had .expill'.ed before th~y .sought

10 Supre1ne Court of Appeals of Virginia

their remedy in equity as subrogees. But 've have a question here, not of the right to sue for rnoney paid out, but of the right to be subrogated to rights and rernedies under .a judgInent. Those rights and remedies for the original holder of the judgment would exist for ten years. Why do they not avail for the san1e length of time for those who stand in his shoes~ Can we n.a.rro1.v the renwdy 'in 1·egard to the. statute of lintitatio'Jl,s? If we do, we do not tJlace the sureties wholly in the shoes of the original cr-editor. We take from, the1n s01ne. thing held by the o1·igina~ party, all of whos~e rights they are entitled to ta.ke ove·r. P~lain'Vy they are also s~u,.bstittded to en/o1·ce the judg·ment w·ithin ten years. That period of limita-

tion is an incident of the judgnwnt,- an incident which 14* sureties get *with the j1.td,rnne11·t by s1tbrogation. It per-

tains to the· 1·entedy given them in the place o.f the original cred·itor. __ They get it beca1Me he had it. (Italics inserted.)

''.7lhe 'right to S'll!e the debtor at law is another thinp. That is~ 'merely WJ~other right or renwdy the s~ureties have aga 'nBt h·int for the 11Wney paid on his behal.f. It is a -legal r·ight or 1·enwrly. But it -::s quite sep£trate and distinct fro;yn. their equitable right or 1·e1nedy by S'ltb.rogation 'ltnder the judgm,ent. 3 1J1inor, Tnst. 2d ed. 429. (Italics inserted).

"It is true that s01ne courts have held that the statute of Jin1itations applicable to an action by the surety against the princ~pal debtor for the money paid applies to the right of the surety in subrogation. But how in good reason can one have relation to the other' One rests on an implied promise; tho other rests n1erely on natural justice and equity, who~ly apart fron1 contractual basis. We adopt that which an eminent authority says on tllis subject: "It seems that the period of Jilnltat:on applicable to the obligation in the hands of the creditor should apply also to an action by the subrogee, although this is not general~y recog·nized. Smne cases hold that the right to subrogation is based on an implied prmnise, and is barred at the expiration of the period allowed for action of assumps;t. * ;~ * «, * * ·

"This seems to be upon the theory that the right to subrogation is 1nerely incident to the right to reimbursement,

and so shoulrl perish 'vith the direct action for reint-15* bursen1ent. This *vie"r seen1s confusing, for in manv

cases of subrogation there can l1e no simple action fo.r

.f\.etna Casualty and Surety Uo. vs. Irving 'Vhaley, et al 11

reimbursement at all. * * * * * * It seen1s better, therefore, to recognize two distinct rights in the subrogee, one to sue for sin1ple reimburse1nent, and the other to enforce the creditor's right, so far as necessary, and, in choosing the latter, to use the period of limitation appjcable thereto.'' 6 Po1n. Eq. Jur. pgh. 924. ''

rrhis case has been approved in this state. See Adam,s vs. Pugh 116 Va. 797, 803, 804, 83 S. E. 372. See also Stowe·rs vs. lVheat, 78 F. (2d) 25, 30. ·

CONCLUSION

It is respectfully subn1itted that equity and sin1ple justice require that this plaintiff be allowed to do wl1at the judgment creditor could ha:ve done, nan1ely, secure a judg1nent on the Tennessee judgment in Virginia where two of the defendants reside. Plaintiffs, therefore, pray that this Honorable Court enter the decree which the lower court should have entered, giving judgment for the plaintiff against the defendants for the mnount sued for.

Counsel for the petitioners adopt this petition as their brief. A copy of this petition 'vas delivered to H. G. Lavinder, Esq., and J. S. Aslnvorth, Esq., counsel for the defendants, on the 28th day of September, 1938.

*'AETNA CASUALTY AND SURETY COMPANY OF HARTFORD, CONNECTICUT,

By Counsel. . ,TONES & WOOD"'\V ARD, p. q.

I, Wm. H. Woodw·ard, attorney, practic:ng in the Su- ' pren1e Court of Appeals of Virginia, do certify that in 1ny opinion the order complained of in the foregoing petition for writ of error is erroneous and that the same should be reviewed and reversed.

WM. H. 'VOODVI ARD.

October 10, 1938. Writ of error awarded by the court. Bond $500.00.

1\L B. W.


RECORD

Virginia:

In the Clerk's Office of the Corporation Court of the City of Bristol:

Aetna Casualty & Surety Company, Plaintiff vs.

Irving Whaley, Margaret Wbaley & Harry Piper, Defendants

BE IT REMEMBERED, that heretofore, towit.: On April 14, 1938, Aetna Casualty & Surety Company filed it's Notice of Motion for Judgment against Irving Whaley, Margaret Whaley and Harry Piper, which said Motion, Pleas, ExUribits and Order, and all proceedings had in said cause, ar-e in the following words arid figures, to-wit;

page 2 NOTICE OF MOTION

(Filed April14, 193'8)

TO IRVING WHALEY, MARIGARET WHALEY ANI) HARRY PIPER:

Take notice that on the 9th day of M:ay 1938, at 10 A. M. . . or .as soon thereafter as this n1otion may be heard, the under

signed wi.l n1ove the Corporat:on Court for the City of Bristo~ Vii:gh1ia, at the courthouse in Bristol, Virginia, for a judgment against you :and each of you in the amount of Six Hundred Thirty Five ( $635JOO) dollars, with interest thereon from June 9, 1.931, untH paid whlch anwunt is due by yon and each of you, to tl1e undersigned by reason of the following facts and circumstances, to-wit: In a certa~n suit in Chance1-y pending in the Chancery Court .a.t Bristol, Tennessee, a judgment and decree was -enteil~ed on June 14, 1930, in which it wa-s provided:

"It is accordingly ordered, adjudged and decreed thut said injunction be dissolved, the suit dism~ssed, and that de-

Aetna Casualty and Surety Co. vs. Irving \Vhaley, et al 13

fendant E. M. 1\riil:er, Receiver have and recover of Irving '\Vpaley, Margaret Whaley and Harry Piper as principals, and the Aetna Casualty and_ Surety Company of Hartford, Connecticut, as surety on the injunction bond, the amount of the judg1nent $476.85 entered in the La,y Court on Sept. 11th, 1929, together with the interest thereon to date of $21.90 or $498.75 with the cost in said law court case of $16.75 or a totttl of Five Hundred Fifteen and 50/100 ($515.50) dollars, and all the costs of th=s cause for which execution may issue.

To 'vhich said action of the court com.plainants except, and pray an appeal to the next term of the court of Appeals at Knoxville, which is granted upon the filing of proper appeal bond and thirty days are allowed within which to perfect said appeal.''

The said case was appealed to the Court of Appeals .page 3 ] of Tennessee and in the said Supreme Court of

Tennessee the judgtnent was affirmed and E. )1. Miller's judgment against the said Irving Wha!ey, l\rfargaret Whaley and Harry Piper, pr~ncipals and the Aetna Casualty and Surety Company of Hartfort, Connecticut, affirn1ed by the Suprmne Court with judgment also against W. L. Sevier, surety on the appeal bond, the total an1ount of said judgn1ent interest and costs be;ng Six Hundred Thirty Five ($635.00) dollars as of J nne 9th, 1931. The undersig1wd Aetna Casualty and Surety Company as surety, paid the said judgment to the p1aintiff and took from him an assignn1ent of said ·judgnlent which is in the following words and figures, to-wit:

''For and in consideration· of the payn1ent of the sun1 of, $635.00 cover~ng the within judgment of $539.89 with interest to date, and the cost of $89.15, I hereby assign the within judgJnent, without recourse, to the Aetna Casualty & Surety Cmnpany of Hartford, Connecticut.

This June 9, 1931. E. M. :MILLEH,

Receiver. By B. S. GORE,

Solicitor''.

Alth0ug'4 oft requested so to do the defendants have not paid or reimbursed the undersigned plaintiff for any portion of the an1ounts so paid and therefore, the tuiders;g-ned will


ask for judgn1ent against you, and each of you, for the aboYe amount of Six Hundred Thirty Five ($635.00) dollars 'vith interest from June 9, 1931 until paid and the costs of this suit .

. page 4 ] This April 9, 1938.

AETNA CASUALTY & SURETY CO. OF HARTFORD, CONNECTICUT

,JONES & WOOD"\V ARD, p. q.

page 5 ] PLEAl

(Filed May 9, 1938)

Comes now the defendant, Harry Piper by his attorneys and for plea to the notice of motion filed against him and others in this case says :

That the alleged judgn1ent which fonns the bas:s of plaintiff's suit is no longer in existence as the same was paid in full on June lOth, 1931, and this· the. said defendant is ready to verify.

CURTIN & HAYNES, PE'fERS, LA VINDIGR, PETERS & ROUSE,

Attorneys for defendant, Harry Piper.

REPLICATION TO DEFENDANT PIPER'S PLEA N0.1

page 6 ] (Filed June 14, 1938)

Co1nes now the plaintiff by its attorneys, and replying to defendant P:pcr's P:ea No.1 filed in this case says:

1. It denies that the judgment upon which plaintiff's action is based is no longer in existence.

2. Plaintiff has paid to E. 1\L 1vfiller, Receiver, the tunount of the judgment and received au assignment thereof and denies that the said payment constituted a satisfaction ·in full of the ;judgtll:ent as behveen this plaintiff and the said defendant Harry Piper.

And this the said plaintiff is ready to verify.

. i JONES & WOODWARD, Attorneys for Plaintiff.

Aetna Casualty and Surety Co. vs. Irving Whaley, et al 15

page 7 ] PLEA2

(Filed :May 9, 1938)

Comes now the defendant Harry Piper by his attorneys and for plea to the notice of motion fPed against him and others in this cause says :

That the supposed Cause of Action upon which plaintiff sues purports to be based upon a judg~nent; that said judgnlent has been paid off and no judgment ever taken, and said judgment is no longer in existence as an. enforceable judgment; that if plaintiff has any cause of action based on its payment of said judgment the same is nothing n1ore than an implied contract based upon plaint~ff's right of reimbursement or exoneration as a surety, and that the same did not accrue to the said plaintiff at any time within three years nor within five years next before the commencement of this action. And this the said defendant is ready to verify.

CURTIN~ HAYNES, PETERS, LAVINDER. PETERS & ROUSE,

Attorneys for defendant Harry Piper.

1\JIOTION TO STRIKE AND REPLICATION TO DEFENDANT PIPER'S PLEA NO. 2.


Comes now the plaintiff by its attorneys, and 1noves to strike defendant Piper's plea No. 2 fi~ed in this case for the reason that the statute of limitations applicable to plaintiff's right in th.;s action is Section 8601 of the Tennessee Code which allows to this plaintiff 10 years within which to conl· 1neuce action after the accrual of action in his favor and sairl 10 year period has not expired.

And this the said pla;ntiff is ready to verify. And the plaintiff in this ac.tion, by his attorneys, for repli

cation to the defendant Piper's said p'ea No. 2 says that it den~es that the said judgment on which its cause of action is based is no longer in existence as an enforceab1e judgment.


JONES & WOODWARD, Attorneys for Plaintiff.

16 Supre1ne Court of A.ppeals of Virginia

page 9 ] PLEA3

(Filed May 9, 1938)

Comes now the defendant Harry Piper by his attorneys and for plea to the notice of motion filed against him and others filed in this cause says :

That the Aetna Casualty & Surety Company 1nade demand upon him to pay said alleged judgment and c aiin on December 23rd, 19p7. On January 4th, 1938, this defendant, through his attorneys, notified said Company that it 'vas his position that said claiin \Vas barred by the statute of limitations, and he declined to make any payment in connection therewith. However, he further notified said company that if it thought otherwise and intended to take any action, it was notified to proceed at once against the principal judgment creditors, Irving Whaley and Margaret Whaley, who o\vned property in Sullivan County, Tennessee. As between this defendant and the .. said Irving Whaley and Margaret Wh.a,ey his liability was that of a surety and it originated by virtue of his execution of an appeal bond for them. The said Aetna Casualty & Surety Company \Vas likewise a surety, but when it paid off sa~d judgment and claim.ed to hold san1e by virtue of an alleged assignment, if it ha.d .any rights, it of course, stood iu the shoes of the original judgment creditor E. M. Miller Receiver. The said Aetna Casualty & Surety Company fai1ed to file suit or to have execution issue or to do anything in connection with its alleged judgn1ent or claim until more than thirty days after January 4th, 19~3g, and by virtue of the provisions of Tennessee Code Section 7526 here pleaded and re-

lied upon, the said I-Iarry Piper became released page 10 ] from th1s claim. Sa:id Code 8ection, which is here

relied upon, is as foP O\VS :

Tennessee Code Section 7526 :

'' \Vhen any surety by bill, bond, covenant, or non-negof able note fo:· the payn1~nt of money or note for specific articles, other 1 hen sureties of guardians, executors adinini:strators, or public officers or guarantors of negotiable paper, apprehends that his princ"pal is likely to become insolvent or to migrate from the state, without previously d)scharging the debt or ·obligation he 1nay if the debt or security be due by notice in writing, require the creditor forthwith to put it ti)

Aetna Casualty and Surety Co. vs. Irving vVhaley, et al 17

suit. Unless, within thirty days thereafter, the creditor commence an action, and proceed with due diligence in the ordinary course of law to recover judgment for, and by execution to make the amount due thereon he shaJl forfeit the right which he woul<;l otherwise have to recover it frmn the surety.''

A copy of said notice of January 4th, 1938 is attached hereto, and is to be treated as a part of this plea. And this the defendant is ready to verify. Wherefore, he prays judgment if the said plaintiff ought further to maintain its action against him.

page 11]

CURTIN & HAYNES, PETERS, LAVINDER, PETERS ~ f.l"TTSE,

Attorneys for defendant Harry Piper.

COPY

,J a.nuars 4. 1938 Mr. A. A. Steele, Adjuster The Aetna Casualty a.nd Surety Co1npany, Roanoke, Virginia.

Dear Mr. Steele :

Mr. Harry Piper of this city has turned over to us for attention your ~etter of December 23rd regarding a clain1 for $535.00 against him, Irving Whaley and ·Margaret Whaley.

It is Mr. Piper's position that this claim is barred by the statute of limitations, and he declines to make any payment in connection therewith. However, if your Company thinks otherwise, and intends to take any action, 1\fr. Piper hereby notifies you that the principal judgment creditors, Irving Whaley and Margaret Whaley own property in Sullivan County, Tennessee subject to attachment, and this is to give you notice to proceed against tl1mn and said property at once.

Yours very truly,

CURTIN & HAYNES, C:B By: THOS. S. CURTIN (Signed)

1\fOTION TO STR.IKE DEFENDAN~r PIPER'S PLEA NO 3

page 12 ] (Filed June 14? 1938)

Comes now the plaintiff by its attorneys and moves to strike defendant Piper's plea No. 3 filed in this action for the


reason that Section 7526 of the Tennessee Code, on which said defendant's plea is based, has no application to the plaintiff's cause of action in that the said statute has no app:ication after jud~ent has been taken and does not apply in fPT'"or of judgment debtors.

And this tl1e plaintiff is ready to verify.

,JONES & WOODWARD, Attorneys for Plaintiff.

SEPARATE PLEA OF HARRY PIPER NO. 4

page 13 .J (Filed May 9, 1938)

The said defendant Harry Piper by his attorneys, comes and says that the supposed cause of action in the notice of n1otion for judgment mentioned is founded upon a judg·ment or decree rendered in the State of Tennessee and that by the laws of said State of Tennessee this action would then be barred, and said Tennessee judgment or decree be incapable of being otherwise enforced in said state of Tennessee and therefore this .action is barred and unenforcible under Section 5819 of the Code of Virginia. And this said defendant is ready to v~rify.

CURTIN & I-IAYNES, PETERS, LAVINDER, PETERS & ROUSE, p. d.

REPLICATION TO DEFENDANT PIPER'S PLEA NO.4


Comes now the plaintiff by its attorneys, and for reply to defendant Piper's Plea. No. 4 filed in this action, denies that the plaintiff's cause of action is barred by the laws of the State of Tennessee.

And .this tho plainti~f is ready to verify.

page 15 ]

JONES & WOOD,~r '~~D, Atorneys fJ~· Plaintiff.

PLEA 5

(Filed 1\{ay 9, 1938)

Comes now tho defendant Harry Piper by his attorneys


.ap.d for plea to the notice of 1notion filed against hin1 and others in thi~ cause says:

That the assignment under which p~aintiff claims to hold the alleged judgment constituting the basis of plaintiff's claim was made in Tennessee \Vhere said judgment had been rendered; that said assigntnent was not executed by the judgnwnt creditor but was signed by his attorney who had no authority to execute said assignment; and that under the law of TE:lnnessee here pleaded and relied upon, it is expressly held that an attorney has no implied authority to execute an assig-nment of a judg1nent; that in addition to the lack of authority of said attorney to execute said .assignment said assignn1ent \Vas never perfected in the manner required under said Tennessee law for the reason that no notice of said assignment \Vas ever given to. this ·defendant or to any of the other parties to said judgment. Under said Tennessee la,v, .here pleaded and relied upon, notice of an assigntnent is essential to its validity. The defendant avers that he received no notice thereof until 1nore than six years after said judgment \vas paid off and said al1eged assignment executed, and said clairn \vas at that time barred by said six year statute of limitafons (Tennessee Code Section 860J), heretofore and now specially pleaded. Defendant further avers that said original suit in the Tennessee court in which judgn1ent was entered in favor of E. J\L ~filler, Receiver, was instituted by

the said E. M. lVliller as R.eceiver ·ror the Virg-inia page 16 ] Banner Coal Corpor.ation; that his authority to

institute said suit was granted by the Chancery .Court at .J ohn~on City, nnd that said court ordor grauied hhn authority only to proseeute said snit to a final jndg1nent; that the sa:d E M. :Miller, Receiver, had no power or authority to assign said judgment, nor to authorize his attorney to assign smue, and that, therefore, even ha.d E. ~L ~:Hiler, Receiver, hin1self executed said assigntnent or had. he authorjzed his attorney B. S. Gore, to execute sa1ne, he would have lwen acting beyond the po,vers granted hhn by the court, and sneh assig-ntnent \Yould l1ave been unauthorized and illegal. -~ copy of the eourt order authorizing hin1 to institute this suit is filed herewith as ]~xhibit "A" to this plea. Defendant, therefore, avers t'Pat said assignment was unauthorized, illeg-al, and was never perfected in the 1nanner required by tho Tennessee law, and is, therefore, of no legal effect as an as· sig'lln1cmt of ~aid judg1nent, and said jud~ment is sat;f-'fied and

20 Supre~e Court of Appeals of'Virginia

no longer in existence as an enforceab~e and valid judgment, and plaintiff has no right to maintain an a-ction thereon. And this defendant is ready to verify.

CURTIN & HAYNES, H. G. LAVINDER,

Attorneys for defendant Harry Pipel'.

(This plea treated as sworn to by agreernent of counsel.)

page 17 ] EXHIBIT'' A''

COPY

John W. Sanders, et al vs.

Virginia Banner Coal Corpn., et al

In the Chancery Court of Johnson City, Tennessee.

In this cause on the lOth day of January, 1929 in open court, came E. vV. Potts, Ancillary Receiver and Trustee ·)f the defendant, Virginia Banner Coal Corporation, by counsel, and agreed that the Receiver may prosecute the suit of E. ~L MiPer, Receiver vs. Irving Whaley and wife, to a final judgment, said cause now pending an appeal in the Law Court at Bristol, Tennessee.

It is therefore ordered by the court that the Receiver prosecute said suit to final tern1ination and report his action in the prem;ses to the court. Until the incoming of said report all other matters are reserved. OK:

MILLER & vVINSrrON, Solicitor for E. M. Potts, Ancillary Receiver.

MOTION TO STRIICE A~TJ) REPLICATION TO DEFENDANT PIPER'S PLEA NO. 5.

:page 18 ] (Filed June 14, 1938)

Comes no"r thf' plaintiff, by its attorneys, and moves to strike defendant Piper's P:ea No.5 filed in this cause, for the fo1lowing· reasons:

1. The assignment of judgm~nt by the attorney and the

Aetna Casualty and Surety Co. vs. Irving "\\'l1aloy, et al 21

judgment creditor is prima facie valid until the contrary appf:ars.

2. The cl~ent of an attorney assigning a judg1uent is the only person who can question the attorney's lack of authority to make the assignment.

3. Section 8601 of the Tennessee Code is the statute of limitations governing ihe plaintiff's claitn and not Section 8600 gf the Tennessee Code as averred by defendant's plea.

4. As a Inatter of law, any judgment creditor holding a judgn1ent against a principal and surety has the right to assign the judgment to the surety upon the payment by the surety and as a matter of law, payment of a joint judgment against principal and surety by the surety creates an equitable right to assignment, tho no express assignment be made.

And for reply t.o said defendant Piper's Plea. No. 5 the plaintiff by its attorneys says:

1. It denies that the judgment on wh;ch its cause of. action i~ based was assigned to it without authority.

2. It denies that its ~lahn is barred by any statute of limitations.

3. It denies that the said judgment is satisfied page 19 ] and no longer in existence as an enforceable and

va'id judgment.

And this the plaintiff is ready to verify.

page 20 ]

JONES & 'VOODW ARD, Attorneys for Plaintiff.

PLEA 6

(Filed ~lay 9, 1938)

Con1es now the defendant, Harry Piper by his attorneys, and for plea to the notice of n1otion filed against him and others in this cause says:

That the supposed cause of action upon which plaintiff's claim is founded arose in the State of Tennessee, and while it

22 Suprmne Court of Appea!s of Virginia

purports to be founded upon a judginent said judgment was in fact, paid off and is no longer in existence, and said c~use of action is Jiothing 1nore than .an implied contract based upon plaintiff's rig·ht of reimbursement or exoneration as a surety, and that the same did not accrue to the said plaintiff at any time within six years next before the commencement of this action, said six year period being the statute of lin1itations 9n such actions as provided by the law of Tennessee, here pleaded and relied upon, said statute of limitations being embodied in Section 8600 of the Tennessee Code which is as follows:

Tennessee Code Section 8600 :

''Actions for the use _and occupation of land and for rent, actions against the sureties of guardians, executors, for nonfeasance, misfeasance, and malfeasance in office ; actions of contracts not otherwise expressly provided for, shall be commenced within six years after the cause of action accrued.''

And this the said defendant is ready to verify.

CURTIN & IIAYNES, PETERS, LAVINDER, PETERS & ROUSE,

Attorneys for defendnt etaoiaccrus Attorneys for defendant, Harry Piper.

~~rOTION TO STRII{E AND REPLICATION TO DEFENDANT PIPER'S PLEA NO. 6

page 21 ] (Filed .June 14, UJ38)

Cornes now the plaintiff, by its attorneys, and 1noves to strike defendant Piper's Plea No. 6 ftle~ in this action, for

. the following reasons:

1. ~l'hat. the plaintiff's cause of action is governed by the statute of lhnita.tions mnbodied in Section 8601 of the Tennessee Code and not by Section 860J of the Tennessee Code, as averred by the said defendant.

2. As a n1atter of law the rights of an assignee of a jndgtnent are governed by the statute of limitations which applies to judgments rather than by the statute of limitations which applies to ilnplied contracts.

And for rep1 y to defendant Piper's Plea No. 6 filed ln this action, the pl~1intiff by its attorneys, says it den!es that

Aetna Casualty and Surety Co. vs. Irving \Vl1aley, et al 23

its cause of action is based upon a judgment no longer .in existence.


page 22 ]

JONES & WOODWARD, Attorneys for Plaintiff.

PLEA 7.

(Filed ~lay 9, 1938)

Con1es now the defendant, Harry Piper by his attorneys, and for plea to the notice of n1otion filed against him and others in this case says :

That the plaintiff's supposed cause of action is founded upon a judgment rend~red by the court of Appeals of Tennessee, "rhich said judg1nent was paid off by the plaintiff, and plaintiff claims to ho,d an assignment of same; that on the 21st of F'ebruary 1938, said plaintiff caused an execution to issue on said judg1nent. The defendant, Harry Piper, filed a motion to quash said execution a copy of said n1otion being filed herewith as Exhibit A to this plea and is to be treated as a.. part hereof. Said n1otion to quash was argued before the Court of Appeals of Tennessee on ~Iarch 15th, 1938, .and the motion to quash said execution was sustainerl by this court. A copy of the Court's order susta-~ning same is filed herewith as Exhibit B to this plea and is to be treated as a part hereof. Defendant, therefore avers that it has already been judicia1ly detern1ined that said judgment is no longer in ~xistence as a valid judgn1ent; that the same is l)arred by the statute of l~mitations; that said assignment was unauthorized and not perfected in the manner required by law; and, that the said Harry Piper released by the plaintiff's failure to cmuply with Tennessee Code Section 7526. Said judg1nent rendered by the court of Appeals of r:rennessee on ~Iarch 15th, 1938, wns a final judgn1ent and no appeal therefronl was taken and the thne for perfecting an appeal has now expired. Defendant avers that the issues and the parties

in said case pending before the Tennessee Court 01 page 23 ] Appeals were and are identical 'vith those in the

present action. Wherefore, defendant pleads said judgment as res judicata of said issues and in har of this Action of plaintiff. And this the said defendant i~ ready to verify.

24 ·Supreme Court of Appeals of Virginia

Wherefore, he prays judgment if said plaintiff ought further to maintain its action against hin1.

page 24 ]

CURTIN & HAYNES, and PETERS, LAVINDER, PETERS & ROUSE,

Attorneys for defendant Ila.rry P.iper.

EXHIBIT ''B''

Court of .A.ppeals of Tennessee, at .Knoxville, niay Tern1, 1937. Tuesday, March 15, 1938.

Court n1et pursuant to adjournment present and presid ing the Honorab1e Judges Hal E. Portrun1, Thurman Ailor and Luke ~L 1\IcAmis.

The minutes of yesterday were read and signed when the follow:ng proceedings were had, to-wit:

Irving Whaley, Margaret E. Whaley, Harry Piper, et al

vs. E. M. 1\filler, Receiver

Sullivan County. Motion to Quash Execution. Allowed

This cause came on to be heard before the court upon 1notions of the complainants Irving Whaley, Margaret E. Whaley, and Harry Piper, to quash the execution in the above case; and upon consideration thereof the court is of opinion that the motions are well taken and the san1e are allowed, and said execution quashed, and the costs incident t.o filing motions, etc., will be paid by the Aetna Casualty "and Surety Co1npany for which let execution issue.

MOTION TO STRIIffi AND REPLICATION TO DE·FENDANT PIPER'S PLEA NO. 7.


Comes now the plaintiff by its attorneys and moves to strike the defendant Piper's Plea No.7 filed in this action for the following reasons :

1. The ruling of the court of Appeals of Tennessee on the motion to quash the.· execution issued out of that court

Aetna Casualty and Surety Co. vs. Irving \Vl1aley, et al 25

as a matter of law did not adjudicate the validity of" the judgment upon 'vhich said execution was issued.

2. The ruling of the court of Appeals of il,ennessee on the motion to quash the execution issued out of that court involved only the validity of the execution and was not an adjudication as to the validity of the judgment.

page 26 ]

JONES & vVOODvV ARD, Attorneys for Plaintiff.

(DE!IURRER)

(Filed June 16, 1938)

N o'v comes d.efendant Irving Whaley and Margaret E. Whaley, by counsel, and demurs to the notiee of Aetna Casua'ty & Surety Company of Hartford, Connecticut, and say the said not~ce is totally defec.tive in tl1e following respects:

1st: That the notice upon its face shows that the plaintiff here was one against wh<nn the judgment was obtained, therefore bound to pay said judgment, and as the notice alleges did pay the said judgment which at law discharges the sa.rne. leaving the said payee the plaintiff here, with the right in equity to subrogation, 'vhich he n1ust have exercised in the State of Tennessee, wherein t11e judf,rm.ent was rendered as upon an hnplied ob'igation.

2nd: The alleged ass~gument of a judgment to one 'vho ·was obliged to discharge it, and did discharge it gives to hiln no additional rjghts to that of the equitable rig·ht of subroga-tion. ·

3rcl : The notiee does not allege that its alleged judgnlent is one w·hich is capable of enforcmnent in the State of Tennessee by the usual process of execution.

''Therefore, &c., these defendants say that the noticP slwu·d be disn1issed upon den1nrrer .

• T. S. ASHWORTH, IRVING 'V!TALEY & ~1:ARGAR.ET WHALEY

4th.: Plaintiff's notice bases .its claim upon a foreign judgment. It 1nust furtl1er allege tl1at the judgment filed con-


stitutes the final action of the Tennessee Court thereon, that it still ren1ains in full force and is capable of being en~

page 27 ] forced by final process.

J. S. ASH"\VORTH, For vVhaleys.

page·28] AGRE·ED srrATE~IENT OF FACT:

It is agreed that defendant Harry 1L Piper now lives in Bristol, Tenn., and has his place of _business in Bristol, Tenn., and is einployed by the Volunteer State Life Insurance Con1~ pany of Chattanooga, Tenn., that said I-Iarry ~I. Piper owns no property of any kind in the State of Virginia, and owns property and is paid his salary in Tennessee, and that he lived ii1 Bristol, rrenn., and had his place of business in Bristol; Tenn., representing the Volunteer State Life lnsurauce Co. nt the tin1e said judgment was taken ag·a:nst hin1 and others in the Chancery Court at Bristol, Tenn. on ,June 14, 1930 and has lived there ever since.

J t. iH R!!Teerl t11at this stat,~Inent of faet may be n1ade a part of the record h1 this case.

Gjven undQr. our hands this June 15, 1938 .

. JO~ES & \VOOD\VAR-D, Counsel for Plaintiff.

T. S. CUHTIN & II. G. LA-VINDER, Counsel for defendant Ilarry l\1. Piper.

J. S. ASHV\10RTII. Counsel fot· Defendants, Ir-.;."ing and Margaret vVhaley.

l1,ilod hy agreement of Counsel J nne 16, 1938.

page 29 ] NOTICE.

DAN DRINKARD, C~erk.

To The Aetna Casualty and Surety C01npany of l.Iartford, Conn .. S. B. Jones C'onnsel, and ,J. B. Anderson, Deputy Sheriff of Sullivan County, Tennessee:

You are hereby notified that Irving \Vhaley and 1\{ar· garet E. Whaley 'vill 1nove the Court of A ppea.ls at Knoxville

Aetna Casualty and Surety Co. vs. lr\ing '\Vhaley, et al 27

on the 15th day of ~larch, 1938, to quash an execution issued by the Clerk of said Court under date of Feb. . ..... , 1938, purporting to have been issued upon a judgtnent of said court of appeals of Tennessee in the Chancery cause of E. ~I. ~Hiler, Receiver vs. Irving Whaley, lVIargaret E. Whaley and Harry Piper. Said judgtnent being dated on the ...... day of .......... , 1931.

~aid n1otion will be nmde upon the ground; First: That there is 1~0 such jnd,';meut, although there was a judg1nent obtained on that date by E. :fiL ~Eller, l{eceiver against Irving Whaley~ ~fargnre:t E. vVha1ey and Harry Piper, as principals and the Aetna Casualty and Surety Co. of IIartford, Connecticut as surety on the injunction bond, and of vV. J.J. Sevier surety on the appeal bond, tlwre.fore, the execution does not pursue that judgrnent. Second: upon the ground that the said judgn1ent was paid tlnd n1arked so on the execution docl~et on the lOth day of June, 1931, thereby, said jud.g1110nt was wholly discharged.

Thi~ the 11th day of ~{arch 1H38.

ROB~e. BUHR.OW, tTR.

lVlARG.Al-l.E~r E. \·Vl-IALEY, IRVING \VliALmY,

By Counsel.

],ilcd in evidenc.e by Pltf. wit11 consent of Deft. tlune 16, 193B.

page 30 ]

Irving· \Vhaley, et al vs.

DAN DHINl{A.RD, Cleric

EXIIIBlT ''A'·

E. ~I. ~Hiler, Receiver, et nl

ln the Court of Appeals at J(noxville, ~~ennessec.

1\tfOTTON TO QUASI-I EXFJCTJTION.

Comes now Harry Piper, one of the con1plainants in the above cause, and n1oves the court to quash an execution issued by the Clerk of said Court on February 21st, 1938, purporting· to be issued upon a. judgment in the above cause ren det~ed in favor of the defendant E. Ivi. Miller, Receiver, against Irving W'haley, l\fa.rgaret :Whaley and Harry Piper; f\nd tho

28 Supren1c Court of Appeals of Virginia

said Harry Piper assigns the following grounds for said motion.

1. Said judgtuent 'vas paid off and satisfied by the Aetna Casualty and Surety Con1pany on June lOth, 1931. Said Surety Con1pany was a party to said judg1nent as surety on the injunction bond and might have taken a judgment over against the principals when it was paid off, hut said surety failed so to do, and any clahn which it 1night have now by reason of paying off said judgment is barred by the six year statute of lilnitatio11s.

2. The said Aetna Casualty and Surety Cmnpany at or about the tin1e it paid off said judgment undertook to procure an assignment of sa1ne, but no notie.e thereof was given to the. other parties and said assignntent if it might otherwise have been proper, was never perfected in the 1nanner required by law; anrl also because said purported assihrnlnent was executed by B. S. Gore, Attorney for EJ. ~L ~{iller, Receiver without any authority to so execute same.

3. 'rhe Aetna Casualty and Surety C01npany page 31 ] n1ade den1and upon the said IIarry Piper to pay

said judg1nent on Deceinber-,23rd, 1937. On January 4th, 19·38, the said !Tarry Pi.ver, throng}} his attorneys notified said co1npany that it was ~lr. Piper's position tl!at this clain1 was harred hv the statute of lhnitations, and he dec 'in«?d to make a.ny pa~nent in connection therewith. However, he further notified said Cmnpany that if it thought other·wise and jntended to take any action, it was notified to proceed at onoo against the principal judgment creditors, Irving 'Vhaley and ·Margaret vVhaley \Vho owned property in Sullivan County, Tennessee. The said Aetna Casualty and Surety Company failed to file s"D:it or to have execution 1ssue or tq -do anything in connectio11 with th.:s judgn1ent untB n1ore than thirty days after .January 4th, 1938, and by virtue of the provisions of Code Section 7526, the said Harry Piper became released [rmn this clahn. A copy of said notice of Jan nary 4.+h l-938., is atlt.ac.hed hereto, :and is to he treated ·as a part of this -:t:notion. ·

An'd wherefore, the said Ra.rry Piper moves the_ court t0 quash said "CXecutio11 and dechtre said judgn1ent bari'ed :and re, eased in so far P ~ it -affects hin1.

(Signed) CURTIN & HAYNES, Attorneys for Harry Piper.


. page 32 ] COPY January 4, 1938

Mr. A. A. Steele, Adjuster, The Aetna Casualty and Surety Con1pany, Roanoke, Virginia.

Dear Mr. Steele :

Mr. H.a.rry Piper of this city has turned over to us for attention your letter of December 23rd regarding a claim for $535.00 against him, Irving Whaley and Margaret Whaley.

It is 1\f r. Piper's position that this claim is barred by the statute of limitations, and. he declines to make any payment in connection therewith. However, if your Company thinks otherwise, and intends to take any acfon, Mr. Piper hereby notifies you that the principal judgment creditors, Irving vVhaley and Margaret Whaley own property in Sullivan County, Tennessee, subject to attachment, and this is to give you notice to proceed against them and said property at once.

Yours very truly,

CURTIN & HAYNES, C:B (Signed) By: THOS. S. CURTIN

page 33 },iled March 16~ 1938. S. E. ULEAGE~ Clerk.

E. Al. Miller, H.eeeiver vs.

Irving Whaley, 1\·largaret E. vVhnley, Harry Piper, Aetna Casualty and Surety Con1pany, et al

:MOTION rro C~UASH FJXECUTION.

This day came the defendants, Irving Whaley and Margaret E. Whaley, by their attorney .J. L. Stern. and moves the court to quash the execution issued by the Court of Appea ~ s by its Clerk, S. E. Cleage, for the following reasons:

FIRST: Because the record of this court shows that there is not such u judgment, although there was such n judgment obtained in this court by E. !f. Miller, receiver vs. Irving Whaley, Margaret E. Whaley and Harry Piper as prin-

....


cipals, and the Aetna Casualty. and Surety Co., as surety on the Injunction Bond, and W. L. Sevier surety on the Appeal Bond, therefore, the execution does not pursue judg1nent.

SECOND: That the above judgment was paid and nmrked so on the execution docket of this court on the 19th day of June 1931, thereby said judgment was wholly discharged.

And the defendants Irving Whaley and ~Iargaret E. 'Vhaley pray the judgment of the court on this n1otion.

State of Tennessee:

J. L. STERN, Attorney.

Office of Clerk of the Court of Appeals at l{noxville.

I, S. E. Cleage, Clerk of the Court of Appeals of page 34 ] Tennessee for the Eastern Division of 'l'enuessee,

residing· at Knoxville in said state do hereby certify that as Clerk of said Court, I have custody of the records and seal of said court; I further certify that the foregoing is a full, true and perfect copy of the lVIotion to Quash Execu tion in the case of E. ~L 1\filler, Rece~ver vs. Irving vVhaley, l\1:argaret E. Wha1ey et al as the same appears of record now on file in my office.

IN TESrl'I:NIONY WHEREOF I have hereunto set mv hand and affixed the seal of said court at office in Knoxvill~ on this the 21st day of June 1938.

(Seal of Court)

State of Tennessee

S. E .. CLEAGE, Clerk.

I, the undersigned, Presiding Justice of the a·ourt of Anpeals for the Eastern Div:sion of the State of Tennessee, do l~ereby certify that the foregoing attestation is in due forn1 and by the proper officer.

Given under my hand this 21 day of June, 1938.

riAL E. PORTRUM, Presiding J ust!ce of the Court of Appeals for the Eastern Division of Tennessee.


State of Tennessee:

Office of Clerk of the Court of Appeals at l{noxville.

I, S. E. c· eage, Clerk of the Court of Appeals fol" page 35 ] the Eastern Division of Tennessee at I{noxville,

do hereby certify that the Honorable Hal E. Por-· trum ·whose genuine signature appear~ to the foregoing_ certficate was at the t=me of filing of the ~lotion to Quash Exe·· cut1on and at the time of signing of said certificate, and is now, the Presiding Justice of the Court of Appeals for the Eastern Division of Tennessee, duly con1missioned and qualified to h9lrl and preside over said court.

TN TESTI~IONY WHEREOF. I have hereunto set my hand and affixed the ·Seal of said court at office in Knoxville, Tennessee on this the 24 day of June 1938.

S. E. CLEAGE, (Seal of Court) Clerk.

page 36 ] Court of Appeals of Tennessee at Knoxville, ~iay Ter1n, 1930, Saturday, March 28th, 1931.

Court n1et pursuant to adjournment present and presidjng the I-Ionorable Judges I-Ial E. Portrun1, C. E. Snodgrass, and Neal L. Thompson.

The minutes of Saturday, ·February 28th, were read and signed when the following proceedings were had, to-wit:

Irving vVhaley, et al vs. () Affirn1ed

E. ~I. ~filler, Receiver, etc.

This cause can1e on to be heard on the transcript of the record fron1 the Chancery Court of Sullivan County a.t Bristol, Tennessee, assignments of errors, briefs and argun1ent of counsel; and upon consideration thereof the court is of opinion and .adjudges and decrees that there is no error in the deeree of the Chance lor as shown in the written opin·on of the court filed nud·Inade a part of the record in this case, and for the reasonn ~tated in said op:nion the decree of the Chancellor is affirmed.

It is therefore ordered, adjudged and decreed by the court that the decree of the Chancellor be and the same is affinued, the injunction dissolved, and the suit dismissed; and that the defendant· E. M. lVIil~er, ReceiYer, l1ave and recover of the


cornplainants, Irving Whaley, }Jlargaret Whaley page. 37 ] and Harry Piper as principals and the Aetna Cas-

ualty and Surety Company of Hartford, Connecticut as surety on the injunction bond, and of W. L. Sevier, surety on the appeal bond the sUm of $515.f>D as, decreed by Chancellor June 14, 1930, with interest thereon to this date 1\{arch 29, 1931, in amount $24.39; making a total recovery of $539.89 together with all the costs of the cause in this court, and the court below, for all of which let execution issue.

On motion of B. S. Gore, Solicitor for the defendant, E. M. 1\rliller. Receiver a lien on the above recovery for his reasonable attorney fees is hereby declared and allowed.

page 38 ] .JUDGMENT DOCI{ET ENTRY

Irving Whaley, et al vs. () Cost of Chancery Court

E. M. Miller, Receiver

Clerk & ~faster lvL L. Hodg·e $30.80 Transcript Cost 310.25 Cost of Court of Appeals, S. E. Cleage, c:erk 28.10

Judgment March 28th, 1931 affirn1ed. E. M. Miller, Re-ceiver have and recover from Irving Whaley, Margaret Whal ey and Harry Piper, principals and the Aetna Casualty Sur~ty Co .. of Hartford, Conn., surety on injunction bond and W. L. Sevier. surety on appeal bond the sum of $515.50 with interest of $24.39 total $539.89 and all cost in this court and beJow. June 15, 1931 Received of B. S. Gore, Check No. 3380 First Nat'l. Bank, Bristol, Tenn.-Va. for $89.15 in payn1ent of opposite costs.

Received of S. E. Cleage, Clerk of the Court of Appeals. of Tennessee, through the Aetna Casualty & Surety Company of Hartford, Conn., the sum of $545.85 covering judgment in the Court of Appeals, March 31, 1931, in the case of Irving Whaley et al, v. E. M. Miller, Receiver, et al, of $539.89, and interest to date of $5.96.

This June lOth, 1931. E. M. MILLER,

Receiver. By: B. S. GORE,

Solicitor.

.Aetna Casualty and Surety Co. vs. Irving Whaley, et al 33

State of Tennessee:

Office of Clerk Court of Appeals at l{noxville.

I, S. E. Cleage, Clerk of the Court of Appeals of page39 ] Tennessee for the Eastern. Division of Tennessee,

residing at Knoxville, in said State do hereby certify that as Clerk of said Court, I have custody of the records and seal of said court; I further certify that the foregoing is a full, true and perfect copy of the Decree and Judgment Docket. Entry of said Court of Appeals, in the case of Irving Whaley~ et al v. E. ]II. Miller, Receiver as the same appears of record now on file in my office.

IN TESTIMONY "\VHEREOF I ha.ve hereunto set n1y hand and affixed the seal of said court at office this April 11, 1929.

(Seal of Court)

State of Tennessee:

S. E. CLEAGE, Cle1·k.

I, the undersigned, Presiding Justice of the Court of Appeals for the Eastern Division of Tennessee do hereby certify that the foregoing attestation is in d\le fol'ln and by the proper officer.·

Given under n1y hand this 12 day of April, 1938.

State of Tennessee,

HAL E. PORTRUM, Presiding Justice Court of Appeals East Tennessee.

Office of Clerk of Court of Appeals at Knoxville.

I, S. E. Cleage, Clerk of the Court of Appeals at I{noxville do hereby certify that the Hon. Hal E. Portru1n wh(_)se genuine signature appears to the foregoing certificate was at the time of the flling of the decree and judgn1ent docket en-

try in the case of Irving Whaley, e.t al v. E. M. page 40 ] 1\t[iller and at the time of the signing of said cer-

tificate, and is now, the Presiding· Justice of the · Court of Appeals for the Eastern Division of Tennessee, duly comtnissionecl and qualified to ho~d and preside over said court.


IN TESTIM:ONY "\\7HEREOF I have hereunto set my hand and affixed the seal of said court at office in Knoxville, Tennessee, this the 11th day of April, 1938.

(Seal of Court) S. E. CLEAGE,

page 41 ]

Clerk of the Court of Appeals East Tennessee.

ORDER

(Entered June 22, 1938)

This cause was heretofore submitted to the court for a .judgment upon the 1nerits; upon the notice of Inotion and exhibits ; the demurrer in writing of Irving Whaley and Margaret Whaley; upon seven separate 'vritten pleas and exhibits of Harry Piper; and the objections in writing· noted on said pleas; 'vhich said pleas are also relied upon by Irving Whaley and J\Iargaret Whaley in so far as they are applicable; upon the agreed stipulation of facts; and upon certain parts of the Tennessee record, all Inarked filed as of June 16, 1938, and which are .to be treated as evidence herein; and upon argument of counsel; and the court having now maturely considered the same is of opinion, that by reason of said pleas and the exhibits, and upon the 'vhole record, that the plaintiff herein is not entit1ed to recover and doth so ORDER and AD~T"UDGE. vVhereupon, the court doth consider that the plain tiff take nothing by it's notice of motion, and that the defendant recover of the pla;ntiff, their reasonable costs in this behalf expended, to aU of which action and ruling of the court, the plaintiff excepts.

Thereupon, the pla:ntiff by counsel moved that his action at law be considered as a bill in equity, and that he be given leave to amend the same in order that it n1ight be so treated, for the purpose of allowing hhn to be subrogated to all rights of the judg-n1ent creditor, E. ~L Miller, Receiver,.. to which 1notion counsel for defendants object, on the ground that plaint.!ff has had in this proceeding all of the rights and rmnedies

to wh~ch l1e is entitled, either in a court of law or a page 42 ] court of equity in Virginia. The Court is of opin-

ion, that the action as brought by plaintiff is broad enough to ascertain any and all r:ghts that the plaintiff has in this jurisdiction. The Court would be glad to treat the notice of motion as a bill in equity and to transfer the case to


the equity side of its own motion, if plaintiff could indicate in any way the existence of a lien in Virginia, to which the plaintiff might be subrogated.

The motion is denied, and plaintiff by counsel excepts.

page 43 ] CLERK'S CERTIFICATE

State of Virginia, City of Bristol, to-\vit:

I, Dan Drinkard, Clerk of the Corporation Court of the City of Bristol, Virginia, do hereby certify that the foregoing is a true transcript of the record in the cause lately pending· in the Corporation Court for the City of Bristol, Virginia, under the style of Aetna Casualty & Surety Company, Plaintiff, versus Irving Whaley, Margaret Whaley and Harry Piper, Defendants; and I further certify that the defendants had notice of the application for the foregoing transcript.

Given under my hand this the 13th day of September, 1938.

Fee of ·transcript: $12.00.

A Copy Teste~

DAN DRINKARD, Clerk, Corporation Court, City of Bristol, Virginia.

.~. M. KELLY, Deputy Clerk.


Page Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Record . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Notice of 11otion ..................... ; . . . . . . . . .. . . . . 12 Plea No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ·Replication to Defendant Piper's Plea No. 1 . . . . . . . . . . 14 Plea No. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Motion to strike & Replication to Defendant Piper's

Plea No. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Plea No. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Motion to Strike Defendant Piper's Plea No. 3 . . . . . . . . 17 Separate Plea of Harry Piper No. 4 . . . . . . . . . . . . . . . . . . 18 Replication to Defendant Piper's Plea No. 4 . . . . . . . . . . 18 Plea No. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............. 18 Exhibit ''A'' to Plea No. 5 .................. ·........ 20 1\iotion to Strike & Replication to Defendant Piper's

Plea No. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Plea No. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... 21 Plea No. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 1\Iotion to Strike & Replication to Defendant Piper's

Plea No. 7 . . ... . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . • . 23 Exhibit "B" to Plea No. 7 .. .. . .. . .. .. .. .. . . . . .. .. . . 24 J\IIotion to Strike & Replication to Defendant Piper's

Plea No. 7 . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . 24 De1nurrer ................... o •• o ••••••••••••• o • • • • • 25 Ag·ree::l Staten1ent of Fact . . . . . . . . . . . . . . . . .. . . . . . . . . . . 26 Certain parts of the Tennessee record . . . . . . . . . . . . . . . . 26 Order (Entereci June 22, 1.938) . . . . . .. . . . . . . . . . . . . . . 34 C,erk'R Certificate ..... o............................ 35

Record No. 2071.

Documents

Transcript of Record No. 2071.