Bloss v. Hull et al.

• Decision Date: 13 February 1886
• Citation: 27 W.Va. 503
• Parties: Bloss Hull et al.
• Court: West Virginia Supreme Court

27 W.Va. 503

Bloss

v. Hull et al.

Supreme Court of Appeals of West Virginia.

Submitted February 3, 1886

Decided February 13, 1886.

1. Depositions are eopied into the transcript of the record of a chancery suit, with a memorandum of the clerk that they had been tiled in the cause, but they are not referred to or recognized in any order or deeree, nor does it appear in any manner that they were read on the hearing of the cause, and they do not tend to support the deeree appealed from. Held: Such depositions are no part of the record and can not be considered by the Appellate Court, (p. 505.)

2. Neither will a court of law nor a court of equity grant a new trial on the ground of after-discovered evidence, when such evidence goes merely to impeach the testimony of a witness on the former trial, nor to let in cumulative evidence as to matter which was principally controverted at the former trial, (p. 507.)

3. Equity will not enjoin a judgment at law on the ground of afterdiscovered evidence, when such evidence relates to a fact in issue on the trial at law, and in support of which testimony was ottered on the former trial, unless it is of such a conclusive character, that, if it had been offered, it should have produced a different result, (p. 508.)

4. Equity will not relieve a party against a judgment at law on the ground of after-discovered evidence or a defence, of which he was ignorant, until after the judgment was rendered, unless he shows, that by the exercise of ordinary diligence he could not discover such evidence or defence, or that he was prevented from employing the same by fraud, accident or the act of the opposite party, unmixed with laches or negligence on his part. (p. 508.)

5. Where relief in equity is sought against a judgment at law on the ground of usury, the bill must put the usury directly in issue, (p. 510)

II. K. Shuma te for appel lant.

J. H. Ferguson for appellee.

Snydeb, Judge:

Hiram Bloss and John Bloss executed their bond to James Hull for $582.52, dated September 13, 1849, and payable eleven months alter date. On December 9, 1869, Hull brought an action of debt upon said bond in the circuit court of Wayne county. The defendants pleaded payment and filed specifications of payments. The case was not finally tried until March 1878, alter the death of John Bloss, when the issues were tried by a jury which, "alter allowing all just offsets," found a verdict of $733.11 tor the plaintiff upon which the court, on March 8, 1878, rendered judgment against Hiram Bloss. Upon a bill exhibited by said Hiram Bloss in said circuit court an injunction was awarded, May 15, 1878, restraining said Hull and others from the enforcement ot said judgment. On August 7, 1878, this injunction was dissolved by the court as having been improvidentiy awarded.

Subsequently, on January 22, 1881, Bloss, upon what is styled in the record an "amended and suppermental bill in the nature of a bill of review," obtained another injunction restraining the collection of said judgment. On April 5, 1881, this injunction was likewise dissolved, but by consent of the parties the bill was not then dismissed, 'The defendant Hull afterwards demurred to the bill and filed his answer thereto. The demurrer was overruled, and the plaintill replied generally to said answer. And on May 1, 1882, the following decree was entered: "This cause coming on to be further heard on the papers heretofore filed, the decrees therein rendered and the answer of defendant Hull this day filed and the replication thereto, was set for hearing and was argued by counsel; upon consideration thereof and the court being of the opinion, that the plaintiff is not entitled to the relief prayed for in his bill, it is therefore adjudged, ordered and decreed that the said bill be dismissed, and it is further adjudged, ordered and decreed that the defendant James Hull do recover ot the plaintiff his costs in this behalf expended together with $15.00 as allowed by statute."

From this decree and the aforesaid decree of April 5, 1881, the plaintiff Bloss, obtained this appeal.

Depositions of the plaintiff and others taken on his behall are copied into the transcript of the record, with a memorandum ot the clerk that they had been filed in the cause March 23, 1881, but said depositions are not referred to or recognized in any order or decree.of the court, nor is there anything in any order or decree to show that they were made a part of the record, or that they were read on the hearing of the cause; therefore according to the repeated decissions of this Court said depositions arc no part of the record and can not be considered by the Appellate Court. Camden v.Haymond, 9 W. Va. 680; Hill v. Procter, 10 Id. 59; Hilleary v. Thompson, 11 Id. 118; Park v. Petroleum Co., 25 Id. 108; Handy v. Scott, 26 Id. 710; Nelson v. Cornwell, 11 Gratt. 724; 4 Min. Inst. 1198.

The rule is qualified to some extent in Day v. Hale, 22 Gratt. 14(1, and Turnbull v. Clifton Coal Co., 19 W. Va. 299. According to these cases, when depositions are taken and filed in the cause, and the decree is supported by and obviously based upon them, the omission to refer to them in the orders or decrees ot the court will be considered a clerical mistake; and the cause will be treated as having been heard upon them as well as upon the other papersin the cause. Warren v. Syme, 7 W. Va. 474.

The decree in the case at bar is adverse to the facts attempted to be proved by these depositions of the plaintiff, and they in no manner support it, but on the contrary, so far as they could be regarded as having any force, they appear to be in opposition to the decrees appealed from, and therefore they do not come within the qualification, but must be disregarded by this Court under the general rule above stated.

Treating the cause then as having been heard upon the bill, answer ot Hull and replication, the decrees appealed trom are plainly right. Even if the bill could be regarded as containing allegations such as would entitle the plaintiff to relief in equity, still, as the answer denies every material allegation of the bill, the burden of proving them was placed upon the plaintiff, and no proof being offered the decree dismissing the bill was necessarily proper and right. But if we disregard the answer and treat the cause as having been heard upon the bill alone, the decrees dissolving the injunction and dismissing the bill were neither of them erroneous.

The only' complaint of the bill is, that upon the trial at law the jury failed to allow the appellant, Bloss, credit tor a judgment for $384.00 recovered by him May 30, 1850, against J. L. Truman and another, which he claims was transferred to the appellee, Hull, and accepted by him as a payment on the bond upon which the judgment sought to be enjoined was recovered. This judgment was one of the specifications ot payments filed and relied on by Bloss in the action at law. The bill avers, that on the trial at law Hull contended said Turman judgment was assigned to him for, and was used by him, to pay other notes of about $360.00 due to him from Bloss, and that it was not transferred or assigned to him as a payment on the bond of $582.52 sued on, that on said trial testimony was offered by him showing that Bloss had admitted such was the fact a short time before said action was brought; that Hull contended no part of the bond sued on had been paid except $100.00, the amount of two orders given by him, while on the other hand, the appellant contended the whole of said bond had been paid by the assignment to Hull ot said Turman judgment and other payments mentioned in his plea in the action at law; that the evidence before the jury was to a considerable extent conflicting, and that both the plaintiff and defendant, Hull and Bloss, and several others were sworn and examined as witnesses for the respective parties in regard to these matters on the trial. The bill avers as grounds for a new trial, that after the trial and judgment at law the plaintiff discovered the following material evidence, to wit: (1.) A note executed by him and John Bloss to Hull for $527.00, dated August 27, 1849, and due twelve months after date, which he avers was the consideration of the bond sued on, the latter having been given in lieu of it for the correction of an admitted mistake; (2.) A bill of sale for negroes sold to plaintiff by one Ferguson, dated April 22, 1847; (3.) A note of plaintiff to said...