Bland et al. v. Stewart et al.
| Decision Date | 12 December 1891 |
| Citation | 35 W.Va. 518 |
| Court | West Virginia Supreme Court |
| Parties | Bland et al. v. Stewart et al. |
Decree Parties Res Judicata.
Where a bill in equity neither makes one a party nor contains matter touching him and asks no relief as to him, any decree touching him is void and not res judicata.
Admintistration Decree Accounts Res Judicata Bar.
Settlement of accounts of administrator and decree confirming same, he not being a party and no matter touching such accounts or his administration appearing in the bill, will not, on the ground of res judicata, bar a bill brought to surcharge and falsify such account by those who were parties to the suit in which such settlement was made.
3. Administration Order of Reference Settlement.
An order of reference in such cause provides for certain objects of reference, but not for such settlement. After specifying such objects it contains a clause requiring the commissioner to report upon such other matters as he may deem pertinent or any party require. Such clause will not justify such settlement, it not being pertinent for want of matter touching it in the bill.
4. Administration Decree Appearance Res Judicata.
The appearance of the administrator before the commissioner and making such settlement will not make him a party or bring the matter of the administration into the cause so as to render the decree upon it res judicata as to any party.
5. AdminiSTrATIOn SETTLEMENT--LAC h ES.
But parties to such suit interested in such settlement having actual knowledge of it, delay bringing a suit to surcharge and falsify such settlement and to have a settlement of the administration for very nearly ten years after its confirmation; and because of such laches and the loss of important papers touching the matters of the account, relief will be denied them.
Eving, Melvin & Riley for appellant, Stewart, cited Big. Estopp. (4th Ed.) 661; 16 W. Va 59; 23 W. Ya. 195. G. H. Umstead for appellant, Stewart, cited Fisher's Dig. 4757; Acts 1872-3, c. 119; 24 W. Va 699; Schou. Exrs. & Adm'rs 526, 528 (note 2); 6 Rich. Eq. 302; 15 W. Va. 692; 24 W. Va. 551; 2 Sto. Eq. Juris. (9th Ed.) 1540, 1541; Big. Estopp. 639; 3 Johns. Ch'y 416; 20 W Va 223.
No appearance for appellee.
Appeal from a decree of the Circuit Court of Wetzel county, taken by Thomas D. Stewart in a suit wherein Joseph Bland and others were plaintiffs, and Thomas D. Stewart, administrator of Elizabeth Bland, and others, were defendants.
The bill was filed to have a settlement of the accounts of Thomas D. Stewart as administrator of the personal estate of Elizabeth Bland, and the decree made Stewart liable for seven hundred and ninety two dollars and ninety cents. One ground of defence to the suit overruled by the Circuit Court was that of estoppel by record. As pertinent to this defence, I state these features of the case. Joseph Bland, on 28 July, 1876, brought a chancery suit in Wetzel Circuit Court against Henry Bland and others, to have a sale of a tract of land owned by Elizabeth Bland at her death, on the ground that it could not be partitioned, and to have its proceeds divided among the plaintiff and the defendants as her descendants to whom the land descended. Stewart was not a party, and no settlement of the administration accounts was sought by the bill. A reference to a commissioner was made to ascertain what amount of land the party deceased died seized of, and to whom it should properly descend, and the interest of each party to the cause, and whether the widow of Samuel Bland would take her dower in money, "and any other matter deemed pertinent by said commissioner or required by any one having an interest in said cause." Notice to creditors of decedent was required to be published.
The commissioner, among other things, made a settlement of the accounts of Thomas D. Stewart as administrator, Stewart appearing before him for that purpose, and found a balance due from him of two hundred and four dollars and eighty cents, which he paid into the hands of the commissioner making the settlement; and the court pronounced a decree confirming the report and directing the commissioner having said money to pay it to the general receiver, and directing the sale of the land. The defendant, Stewart, "pleads this settlement and its confirmation as a bar against the settlement asked by the present suit brought 15th February, 1887.
This Court is of the opinion that this position can not be sustained. The administrator was not a party, and there was no allegation or matter in the bill touching the personal estate, or his administration of it, and no relief asked as to him or it, and Stewart was not served with process. If a person is not named in a bill, and no allegation with reference to him appears therein, even if he is named in the summons, and he Is served with process, he is not a party, and any decree against him would be void and not res judicata; and though named in the prayer of the bill and in the summons, and served with it, but there is no allegation as to him, he is not a party, because there is nothing in the bill to which he could answer, and his rights are not adjudicated. Chapman v. Co., 18 W. Va. 184; Renick v. Luddington, p. 536 of 20 W. Va.; in McNutt v. Trogden, 29 W. Va. 471. When the court ordered a person to be made a defendant and process issued and wras served upon him, but the bill was not amended so as to incorporate matter touching him, it was held that the court had no jurisdiction over him and any decree against him was void. McCoy v. Allen, 16 W. Va. 724.
The estoppel must spring from the force of the adjudication. Here it was void because Stewart was not a party, and there was nothing in the bill touching him or the personal estate of decedent. Would the decree finding a certain amount due be conclusive in his favor against the distributees as to the amount it found? Certainly not, An estoppel must be mutual, or it is no estoppel," A party will not be concluded against his contention by a former judgment, unless he could have used it as a protection, or the foundation of a claim, had the judgment been the other way; and conversely no one can claim the benefit of a judgment as an estoppel upon his adversary unless he would have been prejudiced by a contrary decision." 2 Black. Judg. 548.)
There was no order of the Court to make this settlement. Its subsequent adoption of it could not validate it, because neither the party nor the matter was before the Court. The settlement could not be justified under the clause of the order of reference to report any matter deemed pertinent or required by the parties. That clause must be construed to refer only to matter of the bill and the parties thereto, otherwise such matter could not be pertinent.
The presence of the plaintiffs, or some of them, in the room where the settlement was made would not bind them by it as if parties. There is no evidence, except by depositions in this case, of such presence, for they took no part in the settlement, entered no appearance in it, claimed or contested nothing, made no exceptions. A party it was held would not be bound by decree where he was not served with process, though it were proved that he took part in the preparation of the defence. He must appear in Court, Lyle v....
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