Alford v. Moore's Adm'r

JOHNSON, Judge, delivered the opinion of the Court: It is claimed by appellant’s counsel, that the cause was not finally heard, when the injunction was dissolved, but [605] was heard upon the motion to dissolve only. The recitals of the decree contradict this position. The decree recites: “This cause came on to be heard upon the bill, amended bill, exhibits, depositions, &c., and upon the motion to dissolve the injunction.” The motion to dissolve the injunction on the 23d day of June, 1875, was set down for argument on the next morning, the 24th day of June; but the record does not show it was heard on that day, and on the 5th day of July the cause was finally heard, without any objection from the plaintiff. As the answer of the defendants to the original and supplemental bills had been filed at that term, the plaintiff was entitled to a continuance of the case under the circumstances, had he asked it, but he chose not to do so, but without objection the case was finally heard ; and it was proper upon a final hearing not only to dissolve the injunction but also to dismiss the bills, if the case was not made out. In Brakely v. Tuttle, 3 W. Va. 86, it was held, that where an injunction is docketed before the cause is formally set for hearing at rules, and a motion to dissolve is made, it is not error in the court to proceed to hear the' case on its merits, if the defendant is present in courtand offers no objection. In Tilden v. Maslin ex’r et al., 5 W. Va. 377, it was held that where a cause was heard on its merits, without objection, and a demurrer to the bill had been entered, and all the material allegations of the bill were denied in the answer, and were not sustained by the proof, and the injunction was dissolved, and the bill dismissed, there was no error of which the plaintiff could complain, although it might appear in the order dissolving the injunction and dismissing the bill, that the demurrer was sustained, even if the latter was improperly done. The cause having been submitted upon a final hearing upon bill, answer, &c., as well as on motion to dissol/e, Syllabus i. without objection by.Jthe| plaintiff, it was not error to then dismiss the bills, as well as dissolve the- injunction, [606] ie record warranted the decree, even if the cause had not theretofore been formally set for hearing. Section 13 of chapter 133 of the Code refers to orders made upon motions merely to dissolve in injunction causes, where the bill must necessarily fall, if- the injunction is dissolved. Singleton v. Lewis et al., 6 Munf. 397; Hough v. Shrewe, 4 Munf. 490; Pulliam v. Winston, 5 Leigh 324. The question as to the right of the circuit court oí Cabell county to reverse a judgment of the county court upon scire facias, and the bar of the statute oí limitations, which it is insisted applied, and the question whether the execution being issued in favor oí W. B. Moore, and directed to the same Moore as sheriff of Cabell county, could be executed by said Moore, and whether it was void, were questions which might.have been raised upon the answer to the scire facias at law; and those were all questions arising upon the record, and if there was anything in them, they could as well have been presented by the plaintiff’s counsel in his absence as in his presence. The question remaining to be considered is: Does the record .present a proper case for the interposition of a syllabus3, court of equity? In Meem v. Rucker, 10 Gratt. 509, Judge Lee, with his usual force of expression, said: “ Now that a party, to whom a day and opportunity have been allowed to make his defense against a demand set up against him in a court of law, but who has wholly failed to avail himself of them, will not be entertained in the court of chancery, on a bill seeking relief against-the judgment, which has been rendered against him in consequence of his default, upon grounds which might have been successfully taken in the court of law, unless some reason founded in fraud, accident, surprise, or some adventitious circumstances beyond the control of the party, be shown why the defense was not made in that court, is a proposition which has been so repeatedly affirmed, that it has become a principle, and maxim of equity, as w.ell settled as any other whatever.” This principle has been affirmed by this Court in Smith v. McClain, 11 W. Va. [607] 654, and in Knapp v. Snyder et al., supra. We think a proper case was made by the bill, as it alleged the accident of the kick of the mare, and the sequent mental as well as physical infirmity which followed it, and which continued from more than two months before, until after the judgment was rendered. The bills both allege, that the accident so impaired the mental faculties of the plaintiff during that period, that he was incapable of attending to his defense himself, or of giving any directions to his counsel concerning it. But these allegations are not proved. The depositions of no witnesses were taken on this most material allegation of the bill, and amended bill. Even the affidavit of the plaintiff, taken in the cause, does not say one word as to the mental incapacity of plaintiff caused by the accident. There is no reason shown why his own and other depositions were not taken to sustain this allegation of the bill, which, if unproved, would be fatal to his cause. If such mental incapacity during the period alleged in the bill existed, it would have been easy to have proved it. Failing to prove it, we must conclude it did not exist; and if it had no existence, he could have sent an affidavit to the court as to his physical incapacity, which would have entitled him to a continuance of the case at law. He utterly fails to make out a case for equitable relief. Counsel for appellants claim that so much of the printed record as appears from the word “notice,” on page thirty-nine to page fifty-four inclusive, is no part of the record ; and counsel for defendants had no right to have it copied ; that it improperly cumbers the record, and that the party at whose instance it is done, should be compelled to pay the costs thereof, no matter how the cause is decided. Sec. 18, ch. 171, Acts of 1872-3, provides among other things, that, “ of so much of the record as counsel for any party interested, or the court, shall direct, and the table of contents, the clerk shall cause eighteen copies to be printed,” &e. Of course it [608] may sometimes be a question, whether certain matters a part of the record ; and unless the party appealing applies to the court to direct that such part, as he claims is unnecessary or is no part of the record, should not be printed, and has the whole printed without such motion, he has waived his objection. The Court cannot under the circumstances of this case, require that the appellees should pay for the printing of the fifteen pages objected to, whether it is properly apart of the record or not, as the objection comes too late. The decree of the circuit court of Cabell county, rendered in this cause on the 5th day of July, 1875, must be affirmed, with costs and $30.00 damages. The Other Judges CONCURRED. Decree Affirmed.