Wyatt v. Thompson

Johnson, Judge, delivered the opinion of the Court. The first error assigned is that the court refused to consolidate the several causes. In the case of McRae v. Boast, 3 Rand., 481, it was held, that' the consolidation of actions is not a matter of strict right, nor the proper subject of a plea, either in bar or in abatement; but is addressed to the discretion of the court, and the proper mode of bringing it on is, by motion for a rule to show cause why the actions should not be consolida650 I11 this case there was no motion made for a rule, and if there bad been, we do not think that a consolidation of the causes would have been proper. In Claiborne v. Groos et al., and Wimbish v. same, 7 Leigh, 331, the court held that where two creditors by several judgments file separate bills in chancery, impeaching a conveyance of land made by the debtor as fraudulent, the chancellor on the motion of one of the plaintiffs, consolidates the causes, but the final decree dismisses the bills respectively, and the plaintiffs respectively appeal, the order of consolidation was improper. In Beach v. Woodyard et al., and White et al., 5 W. Va., 231, it was held that the rule for the consolidation of suits is alike in law and equity, and the matter is always addressed to the discretion of the court. Where the parties are the same, and separate suits have been brought in equity upon matters which might have been united in one suit, and the defense is the same in all, a consolidation rule ought to be granted, but where the suits are by different plaintiffs, proceeding against different funds of the defendant to satisfy separate and distinct liens, it was improper to consolidate, the causes. Here the parties are different, and different defenses might have been made. In one of the cases, the plaintiff sues as a personal representative. It would have been error to have consolidated the causes. It is insisted for appellants that there is no proof of the judgment in the second of said causes, and claimed that the answer of Nancy Thompson puts the plaintiff upon proof of his judgment set up in the bill. Nancy Thompson does not deny the judgment; she says as to it, “if the plaintiff has any such judgment it was procured by accident, mistake or fraud.” She does not deny that she was served Avith process, and does not deny that such a judgment was obtained. But if there could be any difficulty about that matter, it is put at rest by the report of the commissioner, who finds such a judgment did exist against her and she does not except [651] to the report. Even where a party files a cross bill, in which he sets up a special charge against a party, if taking the account by a commissioner, this item is charged, and the plaintiff in the cross bill does not except to the report, for the failure to make this charge, it will be considered as abandoned by the plaintiff. Penn’s adm’r v. Spencer et al., 17 Gratt., 85. When the report of the commissioner was made finding the judgment against the defendants, and they did not except to the report, they are concluded by it. When adult defendants fail to except to a report of a commissioner they are generally deemed to acquiesce therein. Laidley v. Kline, admix, 8 W. Va., 218. The appellants claim that the court rejected the answer of Harriman, Sarah E. Forqueran and Nancy Thompson to the bill of Wyatt adm’r of Nancy Smith, and insist that this was error. The appellants are in error on this point, as to a matter of fact, the record discloses that the answer was filed and replied to. It is insisted that it was error to decree the sale of Nancy Thompson’s, and Joshua S. Harriman’s land, until the question of fact raised by their answer, had been disposed of either by proof before the Court or in the mode indicated in the answer. The commissioner reports that Harriman had no estate real or personal, liable to thej judgment. The questions of fact raised by the answer were disposed of by (he decree. The defendants had about two years or more in which to have perfected their defense, they had an opportunity before the commissioner to have shown the facts set up in the answer, if they were material; they did not choose to do so, and at the very last moment they cannot be permitted to come in and raise a new defense without showing why they had not done it before, and have this cause sent back to a commissioner or otherwise delayed, and the plaintiff did the best thing he could do, to let the answer be filed and reply to it and let the court decide the case, which the court did, and there being no [652] Pr°of whatever to sustain the defense set up in the answer> very properly rendered the decree it did. Another objection made to the decree is that the court erred in decreeing a sale of the, lands of the dis-tributees of Nancy Smith, deceased, until it was shown that there was necessity for such sale in order to pay the debts of plaintiff’s intestate. It was not necessary for the bill to allege anything of the kind. Wyatt, as administrator of Nancy Smith, deceased, had recovered judgment against the defendants, Harriman, • Forqueran and Nancy Thompson, and according to the 8th section of chapter 139 of the Code, the plaintiff had the right to enforce his judgment liens at any time against the lands of the judgment debtors. Pecks v. Chambers, 8 W. Va., 210. And if there was any reason why in that particular case it ought not to have been done, it was for the defendants to show it, which as we have seen, they failed to do. From anything that appears to the contrary, the complainant required the money to pay the debts of Nancy Smith; and there was certainly nothing shown in the cause why he ought not to have had a decree to enforce his j udgment liens. We have failed to find any errors in the several decrees of the circuit court of Kanawha county in these several causes, and for the reason stated herein, the said several decrees are affirmed with $30 damages and costs to the appellees, M. P. Wyatt and M. P. Wyatt, administrator of Nancy Smith, deceased, against the appellants. Decrees Affirmed.