Alford v. Moore's Adm'r
| Decision Date | 08 November 1879 |
| Citation | 15 W.Va. 597 |
| Parties | ALFORD v. MOORE'S ADM'R et al. |
| Court | West Virginia Supreme Court |
1. Where a case has been submitted for a final hearing upon bill, answer, deposition, & c., and upon a motion to dissolve the injunction, without objection by the plaintiff or defendants, it is not error to then dismiss the bill, as well as dissolve the injunction, if the record warrants the decree, even if the cause had not theretofore been formally set for hearing.
2. Section 13 of ch. 133 of the Code refers to orders made on motions to dissolve in injunction cases, where the bill must necessarily fall, if the injunction is dissolved.
3. A party will not be entertained in a court of equity on a bill seeking relief against a judgment at law 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.
Appeal from and supersedeas to a decree of the circuit court of the county of Cabell, rendered on the 5th day of July, 1875, in a cause in said court then pending, wherein John Alford was plaintiff and Willson B. Moore's administrator and others were defendants, allowed upon the petition of the said Alford.
Hon Evermont Ward, judge of the ninth judicial circuit rendered the decree appealed from.
JOHNSON JUDGE, furnishes the following statement of the case:
At January rules, 1875, in the circuit court of Cabell county John Alford filed his bill in chancery against George F Miller and C. M. Moore, administrators of W. B. Moore, deceased, and Charles L. Bowden, sheriff of Lincoln county, in which he alleged that at the May term of the circuit court of Cabell county a judgment was rendered against him for $636.87 with interest from July 9, 1858, and costs, in favor of the said administrators, and that the execution was then in the hands of said sheriff of Lincoln county; that at the time said judgment was rendered, " he was at his home in Lincoln county and confined to his bed from a severe and serious injury, which he had received from the kick of a mare some time prior to the session of said court, at which said judgment was rendered; that he was unable, both physically and mentally, to attend to any business, and had been for a considerable period prior to the time of the rendition of said judgment; that he was so much racked with pain from said injury that he was in no condition even to give directions as to any business transactions; that for that reason he was absent at the time said judgment was rendered." He further alleged that he had a substantial defense to said judgment, that the debt for which it had been rendered had been paid by him, and that he had a receipt therefor, or for a large part thereof, which receipt was destroyed during the late war; that for the reason aforestated he was prevented from making any defense to the said claim in the court of law; that he was wholly unable to go to Cabell court house, or even give the necessary instructions to counsel at the time the said judgment was rendered. He prayed an injunction to the judgment until the matters set up in the bill could be fully heard and determined; and for general relief.
On the 3d day of September, 1874, the bill was sworn to. On the next day the injunction prayed for was granted by the circuit court judge in vacation. At January rules, 1875, at the same time the bill was filed, the defendant, C. M. Moore, answered the bill, denying the material allegations thereof setting up any equity, and also denying that the debt had been paid.
On the 21st day of June, 1875, in open court the plaintiff filed an amended bill, and the defendants appeared and waived the issuing of process to answer the same. The amended bill sets up more fully than the original bill the character of the judgment enjoined; it shows that the said W. B. Moore in the county court of Cabell county, on the 5th day of November, 1858, recovered the judgment set up in the original bill, and execution issued thereon directed to W. B. Moore who was sheriff of said county, which was by him returned " not satisfied; " and that another execution issued which was returnable to February rules, 1860, directed to the same sheriff, on which execution no return was ever made; that about the year 1868 said W. B. Moore died, and the defendants, Moore and Miller, qualified as administrators of his estate; that on the 25th day of September, 1873, a writ of scire facias was issued from the clerk's office of the circuit court of Cabell county, summoning the said Alford to appear at October rules, 1873, to show cause why the said administrators should not have execution on said judgment; that on the 20th of December, 1873, the said Alford appeared at said circuit court, and pleaded to said scire facias, the trial of which was continued until the next term of said circuit court; that " at the next term of said circuit court, to-wit: June, 1874, said plaintiff being detained at home, in the adjacent county of Lincoln, by reason of sickness and injuries, as set forth in his original bill, his pleas to said writ of scire facias were withdrawn by his counsel, reserving equity; * * * that the injury mentioned in his said original bill was received in the latter part of March preceding the term of the Cabell county circuit court, at which said judgment against him was rendered, and was so severe as to utterly unfit him, both mentally and physically, for the transaction of any business from the date of said injury till after said judgment was rendered as aforesaid; that but for said injury, he would have summoned his witnesses, and taken his depositions in the said suit, and thus have prepared for the trial thereof at the term at which said judgment was rendered; that said sheriff was proceeding to collect the execution issued on said judgment before said Alford had fully recovered from his said sickness, and he was scarcely able to state his case properly to his counsel, when the original bill was drawn; that the records of the original suit were in the adjoining county of Cabell, and his counsel drafted said original bill as well as he could under the circumstances considering plaintiff's health and the absence of the records; and that counsel should have stated in the original bill, that plaintiff had a receipt in full for said claim, while the execution on the original judgment was in the hands of said W. B. Moore, which fact plaintiff now alleges, and that said receipt has been lost and cannot now be produced.
He alleges also that the first execution, which went into the hands of said W. B. Moore as sheriff of Cabell county, is not among the records of the court, and calls upon the said administrators to produce it, alleging that it is in their hands. He charges that the reason why the said execution was not returned was, because it had been paid, as before charged. He charges that the said Moore, the plaintiff in the original execution, and the sheriff of Cabell county at that time were the same person; and that he had no legal right to collect the same, and that the clerk of the said circuit court of Cabell county had no legal right to direct it to him, and that all the proceedings in said execution by said Moore in his lifetime, and by his administrators since his death, are absolutely void in law.
He further charges that said Moore was the owner of a large number of executions on judgments obtained before the war, and that about the same time he had a large number, if not all said executions reissued; but he did not reissue the one against this plaintiff, because it had been satisfied, as before charged. He further charges that the said original judgment having been recovered in the county court of Cabell county, the circuit court had no jurisdiction to revive the said judgment by scire facias. He prays, that the said judgment on the scire facias may be set aside, and a new trial awarded him, so as to enable him to make his defense to said action, & c.
On the 2d day of June, 1875, the joint and several answers of the defendants, Miller and Moore's administrators, & c to the original and amended bills were filed, and the plaintiff replied generally thereto, " and the motion to dissolve the injunction was set down for hearing on the next morning." The said answer also contains a general demurrer to both the original and amended bills. It denies that the original executions were illegal and void; denies that the circuit court had no jurisdiction to revive the judgment on scire facias, and avers that if such was the fact, the plaintiff had a defense at bar upon a plea to the jurisdiction; denies his right to come into a court of equity for relief, for if his statements with regard to the rendition of said judgments are true, he had a complete remedy at law by defense that might have been there made, as the counsel who withdrew the pleas could have pleaded to the jurisdiction, as well in the absence of his clients, as if he had been present. They say they know nothing of the plaintiff's alleged sickness, and call for strict proof thereof. They say they found but one execution relating to the case in the papers of the intestate, which they filed with the scire facias. They deny that the execution was paid by said Alford, and they also deny that he ever had any receipt therefor. They aver that they found among the papers of said W. B. Moore, the intestate, two executions in favor of Robert Alford against John Alford, and that one of them was levied by said W. B. Moore on one horse of John Alford. Both executions are filed with the answer with the...
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