Lamoille Valley R. R. v. Bixby

The opinion of the court was delivered by Rowell, J. Bixby brought suit against The Montpelier & St. Johnsbury Railroad Company, to recover for personal injuries sustained by him while a passenger on its road, recovered judgment, took out execution, and levied it on an engine called Hyde Park and the tender and a baggage car as the property of said company; whereupon The Lamoille Yalley Railroad Company and The Essex County Railroad Company brought this original bill against Bixby and The Montpelier & St. Johnsbury Company, to enjoin Bixby from selling said property on his execution, for that all of said companies were partners, and as such were running and operating their respective roads as one continuous line of road; that the property levied upon was partnership property; that the partnership liabilities largely exceeded the partnership assets; and that therefore the said Bixby could not in equity lawfully take and appropriate said property to the satisfaction of his execution, it being against one of the partners only; and he was temporarily enjoined from so doing. Bixby answered said bill, and filed a cross-bill, the object of which was, as far as material to be stated, as expressed in the prayer, to have his judgment declared a first lien on the rolling-stock of the three companies, and the same enforced by a sale thereof, or of so much thereof as was necessary to satisfy said judgment, and in case it should be decided that he was entitled to have only an undivided third part thereof sold, to have that part designated, set apart, and sold, or what might be necessary thereof, to satisfy said judgment. Such proceedings were had in the case, that at the General Term in October, 1882, the Supreme Court sent down a mandate for a decree for said Bixby “for the amount of — 560 — one third the value ” of the property levied upon with interest thereon from the date of said injunction, to be ascertained by a master; whereupon the orators in the original bill applied to the Court of Chancery for leave to amend their bill by setting forth the proportion of interest that The Montpelier & St. Johnsbury Company had in said property, claiming that in no event had it more than an undivided eighth interest therein. Leave was granted, Bixby objecting, and the bill amended accordingly, and the cause sent out to a master to ascertain the value of said property, and the propoi'tion of interest of The Montpelier & St. Johns-bury* Company therein; and on the coming in of his report, a decree was entered for said Bixby for 59-479 of such value, and costs; from which he appealed. It is considered that before said amendment was made, no isspe was raised by the pleadings as to the proportion of interest of The Montpelier & St. Johnsbury Company in said property. The original bill alleges the purchase of it on joint or partnership account, but does not allege the proportion of interest of any of said companies therein; nor was such allegation material, as that question was foreign to the purpose of the bill, which was, to enforce the equitable right that creditors of an insolvent partnership have, as well as the partners themselves, to have the partnership assets applied in satisfaction of partnership debts in preference to the creditors of the individual partners. The cross-bill alleges the purchase of said property in much the same way as the original bill does, but makes no allegation as to the proportion of interest of The Montpelier & St. Johnsbury Company therein, nor says anything about it, except that in the prayer it seems to assume that it has a one third interest. It is familiar law that no facts are properly in issue that are not charged in the bill, and that relief cannot be granted for matters not charged, although they may be apparent from other parts of the pleadings and the evidence; for the — 561 — court pronounces its decree secundum allegata et probata. Porter v. Bank of Rutland, 19 Vt. 410, is illustrative of this rule. But this question was not raised by the evidence even, as was said in argument and not denied. Thus it seems, that by some inadvertency, the Supreme Court assumed, without allegation or proof, that the interest of The Montpelier & St. Johnsbury Company in said property was a one third interest, and decided accordingly, whereby injustice was done; and the important question now is, whether the mandate of that court is obligatory on the Court of Chancery to the extent of depriving it of the power to allow such further proceedings in the case as were necessary to remedy the wrong and do justice between the parties. Matters in issue in a cause that are decided by the Supreme Court are, as a general rule, taken from the control of the Court of Chancery by the mandate. Sortwell v. The Montpelier & Wells River R. R. Co. 56 Vt. 180; Sherman & Adams v. The Windsor Manufacturing Co., ante, 57. Matters in issue in a cause .that are not decided by the Supreme Court are as fully under the control of the Court o'f Chancery after mandate as before. Barker & Haight v. Belknap’s Est. 27 Vt. 700; s. c. 39 Vt. 168; Gale v. Butler, 35 Vt. 449; In re Chickering, 56 Vt. 82. Matters not in issue in a cause that are inadvertently decided by the Supreme Court, whereby injustice is done, ought to be as fully under the control of the Court of Chancery after mandate as before; otherwise, as here, the party might be entirely without remedy; for it is impracticable for him to apply to the Supreme Court in the premises, as frequently the first information he obtains of its decision is derived from the mandate, when it is too late to apply: nor can he resort to a bill of review, for under the statute that is sustainable only for causes originating after, or that were unknown to the party before, the rendition of the decree from which the appeal was taken: nor will a petition for a — 562 — rehearing lie, for that must not state matters that do not appear in the pleadings or the statement of which is not warranted by the pleadings; and if it makes a case different from that on which the decree was founded, by introducing facts and circumstances not before the court at the time the decree was made, it will be dismissed. Wood v. Griffith, 1 Mer. 35; s. c. 19 Ves. 550; 3 Dan. Ch. Pr. & Pl. (2d Am. ed.) 1679; 1 Hoff. Ch. Pr. 564. Now while it may well be said, as it is in Canerdy v. Baker, 55 Vt. 582, that “ every consideration demands that a decision of the Supreme Court shall be final, and especially that it shall not be changed by a single judge as chancellor,” yet it may also be said, as there, that error, inadvertence, mistake', are not decision. And especially should they not be so regarded when the thing decided was not in issue; but in such case the matter should rather stand as though no decision had been made, and the Court of Chancery left to allow further proceedings in its discretion. This question has not been decided in this State, but to hold thus accords with the rule that judgments are conclusive as between the parties even only as to matters put in issue by the pleadings and decided. Thus, in Sintzenick v. Lucas, 1 Esp. 43, Lord Kenyon said that in order to make a record evidence to conclude any matter, it should appear that the matter was in issue. Manny v. Harris, 2 Johns. 24. So in Campbell v. Consalus, 25 N. Y. 613, it was held in a subsequent suit that a matter formerly adjudged between the parties was not thereby concluded because not then in issue by the pleadings. People v. Johnson, 38 N. Y. 63; Standish v. Parker, 2 Pick. 20, and n. 2; Outram v. Morewood, 3 East, 346. Even an agreement between parties that matters foreign to the pleadings should be given in evidence and decided, will not, at law certainly, it seems, enlarge the operation of the judgment as an estoppel. Guest v. Warren, 9 Exch. 379; Mondell v. Steel, 8 M. & W. 858; Wolfe v. Washburn, 6 Cow. — 563 — 262; Campbell v. Consalus, 25 N. Y. 613; 2 Smith Lead. Cas. [*672], And although in chancery an executed consent decree on matters not in issue would probably be binding, yet here the orators in the original bill never consented that this question might be litigated- and determined, and • it was not in fact litigated. The next question is as to the competency of Lamson as a witness to the value of the property in question. The master finds that he was Bixby’s attorney in the original suit, and had to do with directing the levy of the execution on the property, and intended to bid at the sale of it in the interest of Bixby; that he was not an expert in the manufacture, use, or value of locomotives, but had seen and examined the one iii controversy several times during the month next before the injunction was issued, and during that time had made some investigation and inquiries for the purpose of determining its value, and from such examination, investigation, and inquiries, had formed an opinion as to its value and what he would bid for it at the sale, and entertained that opinion when he testified. When the value of property is in controversy, the opinion of persons acquainted with its value is admissible; but there is no rule of law defining how much a person must know about property before he can be admitted to give an opinion of its value; though he must have some acquaintance with it, sufficient to enable him to form some estimate of its value, and then it is for the triers to determine the weight to be given to such estimate. Bedell v. Railroad Co. 44 N. Y. 367. But whether a witness possesses the requisite qualifications to make him competent to testify his opinion, is a preliminary question for the tribunal before which he is called; and its decision is conclusive, unless it appears from the evidence to have been erroneous, or was founded on an error in law. Perkins v. Stickney, 132 Mass. 217; Wright v. Williams’ Est. 47 Vt. 222. — 564 — It does not appear what the character and extent of Lam-son’s investigations and inquiries were, nor what the nature of the information he obtained; and unless we can say as matter of law that no amount of information thus obtained could make him competent, we cannot say there was error in admitting him; and'we hardly think we can say this, as such opinions are admitted, not as the opinions of experts, strictly so-called, for they are not formed on special study or training or professional experience, but rather from necessity, on the ground that they depend on knowledge that any one may acquire, but which the triers may not have. Swan v. County of Middlesex, 101 Mass. 173; Crane & wife v. Northfield, 33 Vt. 124; Cavendish v. Troy, 41 Vt. 99. The only remaining question is as to costs; and it is sufficient to say that this 'court rarely if ever reverses a decree on the question of costs alone. Decree affirmed and cause remanded.