Shield v. Brown

Campbell, C. J., delivered the opinion of the court. This suit was instituted by Mary Brown and Benjamin Brown against Edward Shield, for the purpose of ascertaining the true statement of account between the parties, due by reason of their business relations which began in the year 1914 and continued to the year 1933. The bill alleges that numerous business transactions were had between the parties, and while not as specific as — 598 — it might he, it sufficiently sets forth the various transactions consummated. The bill was filed on the 8th day of May, 1933, the cause matured for hearing, and the bill taken for confessed at the second June Rules, 1933. On the 31st day of July, 1933, a decree of reference was entered, directing the commissioner in chancery to en-quire into and report in what amount, if any, the defendant was indebted to complainants. Before the execution of this decree, defendant, on the 1st day. of August, 1933, obtained leave of court to file his answer. The answer denied the allegations of the bill and affirmatively set up the defense that on the 1st day of November, 1932, the complainants, by a written agreement, had settled all matters in controversy between the parties. After an exhausive hearing, the commissioner filed his report setting forth that Shield was indebted to complainants in the sum of $6,967.28. Upon exception to the report, the chancellor reduced the amount of interest found by the commissioner and entered a decree against Shield in the principal sum of $6,590.30. It is assigned as error that the court erred in not sustaining respondent’s plea of the statute of limitations. There is no merit in this assignment of error, for the reason that, in our opinion, no proper plea of the statute of limitations was filed by respondent, nor was the question of the statute of limitations urged before the court or the commissioner. The only reference to the question of limitations is found in the answer of respondent. The reference now relied upon is as follows: “This Respondent further answers and says that the transactions and matters referred to in Paragraph 1, 2, 3 and 4 of the Bill are not only closed transactions, as set forth in said contract, but are transactions which are barred by the Statute of Limitation had there been no such contract as ‘Exhibit A’ herewith.” .That respondent did not rely upon the statute of limitations in the lower court is evidenced by the fact that he did rely upon the alleged contract designated as “Exhibit A.” — 599 — While it is true that the same strictness of pleading is not required in equity as at law, and the question of limitations may he raised in general terms in the answer, it is nevertheless incumbent upon the defendant to apprise the plaintiff that the statute is relied upon, and the better practice is to allege such facts which indicate that the statute is applicable. Tazewell’s Ex’r v. Whittle’s Adm’r, 13 Gratt. (54 Va.) 329, 344. There is in the language contained in the answer no intimation that the statute of limitations would be relied upon. As we view the record, the question of limitations has been relied upon for the first time in this court. The issue is presented too late, even if there were any merit in it. The next assignment of error is that the court erred in not dismissing complainant’s bill or transferring the cause to the law side of the court. This assignment raises for the first time the question of jurisdiction. It is virtually conceded by counsel for Shield that no motion was made to transfer the cause to the law side of the court; that no question of jurisdiction was raised in the lower court. The main reliance of defendant is found in the contention, that upon the face of the bill it appears that complainants had a complete remedy at law, and therefore, equity is without jurisdiction. It has been repeatedly held by this court that the question of jurisdiction may be taken advantage of for the first time in the appellate court. Boston Blower Co. v. Carman Lumber Co., 94 Va. 94, 26 S. E. 390. Without setting forth the bill of complaint in its entirety, we deem it sufficient to state that the bill sets forth sufficient matter to warrant the enquiry of a commissioner upon the question of an accounting between the parties. Much of the enquiry was devoted to the books of account kept by the defendant. The transactions between the parties were complicated and covered a long period of years; all the parties were people well advanced in years, and the report of the commissioner shows that only — 600 — after diligent search and enquiry was it possible to reach a conclusion in the matter. Defendant’s petition for appeal is a concession that the many and varied transactions had between the parties were obscured by doubt. In the petition we read: “There are many and varied transactions had between the plaintiffs and defendant dating from 1913 to 1934 as shown by the evidence, (R., p. 110) (Mary Brown): Q. ‘You have been borrowing money from him for twenty years?’ A. ‘It seems so,’ and allegations of the bill, paragraph four, page four; and it is evident the plaintiffs do not know what has occurred or what they owe. Their allegations and evidence deals in generalities and unfortunately the defendant, 84 years old, and nearly blind, could not, on account of his advanced age and physical and mental condition, give much assistance to his attorney in his case. * * * The transactions are as stated in the bill and shown by the evidence, numerous and varied, commencing prior to 1915. There are notes and accounts due defendant by plaintiffs for the purchase of wood, land, mules, saw outfit, truck, etc. The transactions are too numerous to detail, some of them with the brother-in-law of Brown, his sister and some other members of the family at the request of the Browns and for them, in all of which Mr. Shield is advancing and putting up money for them, even paying taxes and insurance.” Accounting between parties has always been the basis for equity jurisdiction. “Granting it to be true, as contended, that appellee had a complete and adequate remedy at law, it is equally true that the existence of a remedy at law cannot deprive courts of equity of jurisdiction in a matter that comes within the scope of their elementary jurisdiction.” Hull v. Watts, 95 Va. 10, 13, 27 S. E. 829, 830. In Iron City Bank v. Isaacsen, 158 Va. 609, 164 S. E. 520, 525, Justice Epes said: “Where some phase of the case alleged in a bill in chancery presents a good ground for equitable relief, and — 601 — the court has acquired actual jurisdiction of all the parties, or of the res, necessary for the granting of some of the equitable relief to which the allegations of the bill entitle the complainant, a court of chancery may go on to a complete adjudication of the cause, even to the extent of establishing legal rights and administering legal remedies, which would otherwise be beyond the scope of its authority. In each such case the court is vested with a sound discretion to determine upon the facts and circumstances of the particular case, whether it is better to relegate the parties to a court of law for the establishment of their legal rights and the administration of legal remedies, or to go on and end the litigation by giving complete relief in the chancery cause. Walters v. Farmers Bank, 76 Va. 12, 20; Shaw v. G. B. Beaumont Co., 88 N. J. Eq. 333,102 A. 151, 2 A. L. R. 122. But generally speaking, in such a case it will not send the parties back to a court of law, but will retain jurisdiction for all purposes, and do complete justice between the parties. This is true even where the proof may show that the complainant is not entitled to the equitable relief prayed, or that subsequent to the filing of the bill need for equitable .relief has ceased to exist.” In our opinion the above rule is the proper one to apply in this case. It would serve no good purpose to prolong this opinion by a review of the evidence. It is replete with contradictions. The report of the commissioner has been confirmed by the learned chancellor, and the settled law is that this action is entitled to great weight. In First National Bank of Lexington v. Weinberg, 165 Va. 433, 182 S. E. 250, 253, it is said: “In the face of the commissioner’s conclusion, approved by the court, we would not be justified in reversing the judgment, unless it clearly appears that the commissioner has erred. The consistent holding of this court has been to attach great weight to the findings of a special commissioner whose report has been confirmed by the trial court.” — 602 — See Stimpson v. Bishop, 82 Va. 190; Boston v. Shackelford, 162 Va. 733,175 S. E. 625 Clevinger v. County School Board, 139 Va. 444, 124 S. E. 440. Upon the whole case,, we are of opinion that appellant has not been prejudiced by the decree of which he is complaining. Affirmed.