Thurman v. Morgan

Citations

• 79 Va. 367
• 1884 Va. LEXIS 91

Syllabus

<p>1. Judgments and Decrees— Void on Face.—Creditor, instead of proceeding at common law to recover his claim, obtains an order for its payment on summary rule to show cause. This is a departure from the established modes of procedure, .and the order so obtained has not the force of a judgment, but is void on its face. Nulton v. Isaacs, 30 Gratt. 740.</p> <p>2. Idem—Idem—Case at Bar.—H., as receiver, and his sureties, executed his official bond. Before making report H. died. M. succeeded him. Rule was awarded to compel H.’s adm’r to report H.’s action as receiver. He reported that the fund had not come to his hands and that he could not report H.’s action. B. having taken accounts as ordered, reported that there was $3,683 due from H. as receiver. Report being confirmed, M. got a rule against H.’s administrator and sureties to show cause why a decree should not be entered against them for said sum. They appeared and moved to quash the rule. The motion was overruled and the decree entered against them. Upon appeal here—</p> <p>Held:</p> <p>1. By reason of their suretyship, the sureties were neither parties to the suit nor officers of the court, and there was in their hands no fund subject to the order of the court, and hence they could not be proceeded against by rule.</p> <p>2. Their liability, as sureties, could be enforced only by action on their bond in a common law court, where they could make defence on trial by a jury.</p> <p>3. The order for the payment of said money, so obtained by rule, is a departure from established modes of procedure, and is void.</p>