Richmond

#### The Hill School v. John R. Buchanan.

January 8, 1940.

Record No. 2201.

Present, Holt, Hudgins, Gregory, Browning, Eggleston, and Spratley, JJ.

*John S. Barbour,*for the plaintiff in error.

*Walter H. Robertson, Thomas B. Gay*and *Lewis F. Powell, Jr.,*for the defendant in error.

Holt, J.,

delivered the opinion of the court.

*282This case, like that of *Buchanan*v. *Buchanan,*this day decided, *ante,*page 255, 6 S. E. (2d) 612, *supra,*grows out of *Buchanan*v. *Buchanan,*170 Va. 458, 197 S. E. 426, 116 A. L. R. 688.

By an order made and entered by the trial court October 15, 1935, in the case reported in 170 Va. 458, 197 S. E. 426, 116 A. L. R. 688, *supra,*the' defendant, John E. Buchanan, was directed to pay sundry bills incurred by his divorced wife, Euth Lester Buchanan, in the matter of the support and education of their two infant sons. The claim of the present plaintiff in error, The Hill School, amounting to $1,644.87, plus interest, was one of them.

The defendant having failed to' comply with the order, or judgment, of October 15, 1935, requiring him to pay the claim in question, The Hill School, on March 8, 1939, sued out of the clerk’s office of the trial court a writ of *scire facias*against John E. Buchanan, calling upon him to show cause, if any he could, why the school should not have execution against him in the amount of the face of its claim, with interest from July 1,1935, until paid.

On March 27, 1939, Buchanan filed his response and grounds of opposition to the issuance of an execution, the 1st and 3rd of which grounds were as follows:

> “(1) That the alleged judgment of October 15, 1935, referred to in said show cause order, is null and void, because this Honorable Court was without power or jurisdiction to render the same in the then pending action styled *Buchanan*v. *Buchanan,*which said action was a *habeas corpus*proceeding.

> “(3) That said alleged judgment of October 15, 1935, is null and void, because this Honorable Court was without power or jurisdiction to enter the same for the reasons and upon the grounds set forth by the Supreme Court of Appeals of Virginia in the final decision and judgment rendered on March 10, 1938, in the case of *Buchanan*v. *Buchanan*(reported in 170 Va., at page 458, 197 S. E., at page 426, 116 A. L. R. 688).”

*283The matter came on for hearing in the trial court on April 7, 1939, was argued by counsel, and the court, on that day, announced its decision holding that the judgment of October 15, 1935, was void, and entered a judgment denying The Hill School’s asserted right to the issuance of an execution to enforce it. The school excepted and in due course was allowed a writ of error.

For the reasons elaborately set forth in the opinion in *Buchanan*v. *Buchanan,*170 Va. 458, 197 S. E. 426, 116 A. L. R. 688, and which reasons it would be superfluous to repeat here, we think the judgment of October 15, 1935, was void with respect to the claim here involved, and hence the judgment now under review denying execution should be affirmed. This, however, without prejudice to the right of The Hill School to present and prosecute its claim against the defendant, John R. Buchanan — and, if so advised, also against Ruth Lester Buchanan — in any manner allowed by law. The decree establishing The Hill School claim was based upon the report of a master commissioner. Mr. Buchanan first in an exception denied liability at all, but in another and later contented himself with saying that it was excessive in that he was notified that it would not exceed $1100.

*Affirmed.*