Alleman v. Kight & Bro.

Haymond, Judge, announced the opinion of the Court: According to the plaintiff’s own showing in his bill and in his answer to the plaintiff’s suggestions made upon oath he was indebted to said G. W. Alleman, the execution-debtor, in the sum of $2,100.00, upon which nothing was due until June, 1875, or that there was a payment due in June, 1875. He thus shows by his answer, that he was indebted to G. W Alle--man -in -a sum largely more than sufficient to pay and satisfy — 216 — each and both of said executions against said G. W. Alleman and in favor of the defendants, Kight & Bro., issued upon their two several judgments against the said G. W. Alleman, to wit: one for $745.08 with interest thereon from the 1st day of September, 1872, and $17.85 costs, and the other for $151.91 with interest thereon from the 5th day of March, 1869, and costs $19.80. When the plaintiff answered upon oath before the court as aforesaid, nothing remained for the court to do but to render judgments in favor of Kight & Bro. against the plaintiff for the amount of each of said judgments and executions, including principal, interest and costs up to the 1st day of June, 1875, with interest thereon from that date and the costs upon each suggestion with stay of execution in each case until the 1st day of June, 1875. The plaintiff alleges, that the court did render two judgments against him upon his answers to said suggestions, viz : One judgment upon the first of said suggestions for $897.61 with interest from the first day of June, 1875, and costs $5.39 to beccome payable the first day of June, 1875, (by which I understand with a stay of execution until the date last aforesaid). Plaintiff also alleges, that the amount of this judgment against him is largely in excess of the said judgment of Kight & Bro. against G. W. Alleman mentioned in the said first suggestion, to wit: About $33.32, and that the judgment against him on the second suggestion for $232.45 with interest from the 1st day of June, 1875, payable the 1st day of June 1875, is is also entered up for a greater amount than the original judgment of Kight & Bro. against said G. W. Alleman. The court had before it, at the time it rendered each of said judgments against the plaintiff, as a part of the record in the suggestion cases the judgments and executions in favor of Kight & Bros, against said G. W. Alleman ; and the amount of each of said judgments rendered in favor of Kight & Bro. against the plaintiff was manifestly arrived at by calculation ; and if either of said judgments against the plaintiff is for a sum in excess of what it should have been, it was the result of miscalculation by the court, and the plain and proper proceeding to correct the said judgments against the plaintiff, or either of them in this respect is by notice and motion under — 217 — the provisions of the fifth section of chapter 134 of the Code of 1868 and not by bill in equity either, with or without injunction. The remedy of the plaintiff for the correction of said alleged errors in the judgments against him in his bill mentioned, if such errors exist, under said section and chapter of the Code is complete. The plaintiffs in said judgment may also under said section and chapter of the Code release such excess, if it exists. The next ground for equitable relief set up by the plaintiff in his bill against said judgments so rendered against him by the court in favor of Kight & Brother upon said suggestions, is substantially, that in fact there was nothing due from him to the said G. W. Alleman until the 1st day of July, 1875, and then only $91.79, and then $155.91 due every three months thereafter, until the full amount of his contract with said G. W. Alleman should be paid subject to certain credits mentioned in his bill (which it is unnecessary here to state) and that he, plaintiff, made said answers upon said suggestions through a mistake, as he had never been sworn in court before, he was considerably embarrassed and did not perhaps explain to the court fully how said payments became due; and the court, through a mistake of his (plaintiff’s) entered up said two judgments against him upon his said answers upon said suggestions. This is in substance all the plaintiff alleges in his bill touching his said alleged mistake in his said answers so made as aforesaid. If the plaintiff did in fact make in his said answers upon his oath the mistake he alleges, it was certainly a very great mistake, but he utterly fails to show by any allegation or averment in his bill, that the alleged mistakes in said answers were not the result of his own laches and negligence. No reason is stated by the plaintiff in his bill' why the alleged mistakes were made in said answers, except that plaintiff had never been sworn before and was at the time considerably embarrassed, and did not perhaps explain to the court fully how said payments became due. This reason for said alleged mistakes of plaintiff is clearly insufficient in a court of equity. Instead of showing ignorance of the fact and diligence and a want of negligence on his part, it shows the contrary. A judgment by confession or otherwise will not be restrained by injunction on grounds purely legal, — 218 — unless a defence at law has been prevented by fraud on the one side or ignorance of facts unmixed with negligence on the other. Harner v. Price, 17 W. Va. 523; Shields et al. v. McClung et als., 6 W. Va. 79, 3d syllabus ; see also Braden v. Reitzenberger, 18 W. Va. 286. The plaintiff’s bill also contains this further clause, namely: “ Complainant further represents that he is informed and verily believes and therefore charges, that the said judgments of the said Kight & Bro. against G. W. Alleman, have been almost, if not wholly paid by the said G. W. Alleman.’’ This is the only allegation or charge contained in the bill upon or with reference to that subject. It is not pretended that this allegation and charge give a court of equity jurisdiction to entertain the plaintiff’s bill and interfere at the instance of the plaintiff as to the matter of the last named allegation and charge, and I deem it unnecessary to discuss this matter further. The matters of alleged equity contained in the plaintiff’s bill I have considered separately and shown, that neither of them separately is sufficient to give a court of equity jurisdiction of plaintiff’s bill, and neither of them being sufficient by itself they are not sufficient considered jointly to give a court of equity jurisdiction. The injunction allowed the plaintiff in this cause was improperly allowed, because the bill showed no equity on the part of the plaintiff to authorize a court of equity to interfere in his behalf or at his instance by the process of injunction. And lam unable to see from the face of the plaintiff’s bill or by anything appearing in the cause, that the plaintiff by an amendment of his bill could in the least better his condition in a court of equity. Indeed from what appears on the face of the bill and all of the proceedings in the cause, it seems to me. to be clear, that the plaintiff could not by amendment of his bill better his condition in a court of equity. I infer from the opinion of the court upon the demurrer of Kight & Bro. toJplaintiffVbill embodied in its decree of the 21st day of January, 1876, that it was then of the opinion that the plaintiff’s bill contained no equity, so far as the plaintiff was concerned, in fact the court says in that decree, that the demurrer of Kight & Bro. is well taken. But the court declined at that time to enter judgment upon — 219 — said demurrer, because it was of opinion from the answer of the defendant, G. W. Alleman, and the proofs filed in the cause, that the judgment of Eight & Bro. against G. W. Alle-man ought to be credited with certain sums of money, and that by reason thereof the judgment against the plaintiff in favor of Eight & Bro. would be entitled to like credits, and the court overruled the objections of Eight & Bro to the motion of said G. W. Alleman to file his said answer as a cross-bill in the cause and did then and there order it to be filed as a cross-bill therein, and ordered an account to be taken as shown in the statement of this case already given. Subject to some qualifications a cross-bill being generally considered as a defence to the original bill, or as a proceeding necessary to a complete determination of a matter already in litigation, the plaintiff is not at least as against the defendant in the original bill obliged to show any ground of equity to support the jurisdiction of the court. It is treated, in short as a mere auxiliary suit, or as a dependency upon the original suit. Story Eq. PI. 399. See on this subject same work §§ 389, 392, &c. See also the subject considered in Dickinson v. Railroad Co., 7 W. Va. 390 and West Va. Oil & Oil Land Co. v. Vinal and Vinal v. West Va. Oil & Oil Land Co., 14 W. Va. 637. In the case of Dows v. Chicago, 11 Wall. 108, the original bill was filed by the plaintiff to restrain the collection of a tax levied by the city of Chicago upon shares of the capital stock of the Union National Bank of Chicago, owned by him. The bank was organized and doing business in the city of Chicago, under the general banking act of Congress, and the complainant was a citizen and resident of the State of New York. The principal grounds alleged for the relief prayed were, that there was in the tax of the shares of the bank a want of uniformity and equality with the tax of other personal property in Illinois, as required -by the Constitution of that State; and that the shares of the bank followed the person of the owner, and were incapable of having any other situs than that of his domicile, and were not therefore properly within the jurisdiction of the State. Other objections were also urged tending more to show irregularities in the proceedings than invalidity of the tax. The bill in the cross-suit was — 220 — filed by the Union National Bank of Chicago, and besides alleging the illegality of the tax assessed, on various grounds, assumed that if the shares were permitted to be sold, irreparable damage would not only be done to each of the shareholders, but also to the bank, which would thereby be subjected to great loss of standing and other injury, for the redress of which the law afforded no remedy; and that such also would be the result if the bank paid the taxes, and was subjected to suits by each of the shareholders by reason of doing so; and that in either event a multiplicity of suits would be rendered necessary to adjust the rights of the parties. A demurrer was interposed to the original and cross-bills. The circuit court sustained the demurrers to both, and the complainants in the two cases electing to abide by their bills, the court entered decrees dismissing the bills. From these decrees appeals were taken. Judge Field delivered the opinion of the Supreme Court of the United States upon' the case and in speaking of the original bill at page 112 says: “We see no grounds for the interposition of a court of equity, which would not equally justify such interference in any case of threatened invasion of real or personal property. The cross-bill filed by the bank presents different features. That institution insists, that if it paid the -tax levied upon the shares of all it.s numerous stockholders out of the dividends upon their shares in its hands, which it is required to do by the law of the State, or if the shares were sold, it would be subjected to a multiplicity of suits by the share-holders; and were it an original bill the jurisdiction of the court might be sustained on that ground. But as a cross-bill it must follow the fate of the original bill.” I do not understand however that a cross-bill in all cases must follow the fate of the original bill. See the cases in 7th and 14th W. "Va. ubi supra. The case at bar is in material aspects like the last named case in 11 Wallace in principle. Here the plaintiff's bill shows no good equitable grounds for the interposition of a court of equity, and was for that reason demurred to by the defendants, Kight & Brother, and they also moved to dissolve the injunction. Upon the whole it seems to me under the circumstances, that the circuit court erred in not sustaining the demurrer of the defendants, Kight & Brother, to the — 221 — plaintiff's bill, and in not dismissing the same for want of equity and in not dissolving the injunction theretofore allowed in the cause at its January term, 1876, and also at the same term and in the same decree erred in ordering the answer of said G. W. Alleman to be filed in the cause as a cross-bill, and in ordering an account, &e. It follows therefore that all the subsequent decisions rendered in the cause are erroneous. Entertaining the foregoing views with reference to this cause there is error in the said decree of the circuit court of the county of Wood, rendered in this cause on the 18th day of October, 1878, and the same must therefore be reversed and so also must all the other orders and decrees of said court rendered .in the cause prior to that date including the verdict of the jury rendered upon the issue ordered in the cause back to and including all the decree made in the cause on the 21st day of January, 1876, which follows the words “and therefore the demurrer to said bill is well taken" therein, and the appellant must recover against the appellees, John Alle-man and G. W. Alleman, their costs in this court about the prosecution of their appeal and supersedeas expended. And this Court proceeding to render such decree in the cause, as the said circuit court should have rendered, it is adjudged, ordered and decreed, that the motion of the defendant, G. W. Alleman, to file his answer in the cause as a cross-bill be overruled. And it is further adjudged, ordered and decreed, that the demurrer of the defendants, Kight & Brother, to the plaintiff's original bill be and the same is hereby sustained, because the said bill shows no good equitable ground for the interposition of a court of equity on behalf of the plaintiff, and the motion of the defendants, Kight & Brother, to dissolve the injunction heretofore allowed in this cause by the said circuit court of Wood county be and the same is hereby sustained, and said injunction dissolved, and the plaintiff's said bill dismissed. It is further adjudged, ordered and decreed, that the said defendants, Kight &■ Brother, recover against the plaintiff, John Alleman, their costs including an attorney’s fee, about their defence of this suit in the said circuit court of Wood county expended, up to the 21st day of January, 1876, and that they recover against the said John Alleman and the defendant, G. W. Alleman jointly — 222 — their costs expended about tbeir defence of this suit in said circuit court subsequent to and including the said 21st day of. January, 1876, excluding therefrom an attorney’s fee. But this decree is without prejudice in any respect to the right of the plaintiff, John Alleman, to hereafter move to have the said two judgments or either of them of Eight & Bro. against him amended upon notice and motion under the provisions of the fifth section of chapter 130 of the Code of this State of 1868 for error therein as to amount, produced by miscalculation of the amount of the two several judgments of said Eight & Bro. against the defendant, G. W. Alleman, in the said plaintiff’s bill mentioned up to the 1st day of June, 1875, including the principal, interest and costs of each of said last named judgments, if such errors exist, which said right is hereby reserved to the said John Alleman. And this decree is further without prejudice to any right at law or in equity of the said G. W. Alleman touching or relating to any matter set up in his answer filed in this cause against or in relation to the two judgments or either of them of said Eight & Bro. against him in the original bill filed in this cause and in his said answer mentioned, and also against or in relation to said two.judgments or either of them of said Eight & Bro. against the plaintiff, John Alleman, rendered against him (John Alle-man) upon suggestions in said John Alleman’s said bill mentioned, or any other right legal or equitable which the said G. W. Alleman may have in relation to or in any manner touching said judgments or any of them in any suit, suits, proceeding or proceedings at law or in equity or both which may hereafter be brought or prosecuted by or against the said G. W. Alleman touching or in relation to said judgments or any of them or any part of any of said judgments, the said legal and equitable rights of the said G. W. Alleman, if any be in fact set forth, not having been passed upon or inquired into in the decision of this cause are reserved to him in any future suit or proceeding by or against him as aforesaid. Judges JohNsoN AND GreeN CoNcurred. Decree Eeversed.