Blumberg Bros. Co. v. King.

• Decision Date: 24 February 1925
• Docket Number: (No. 5186.)
• Citation: 98 W.Va. 275
• Court: West Virginia Supreme Court
• Parties: Blumberg Brothers Company v. Anna R. King et al.

98 W.Va. 275

Blumberg Brothers Company

v.Anna R. King et al.

(No. 5186.)

Supreme Court of Appeals of West Virginia.

Submitted February 3, 1925.

Decided February 24, 1925.

1. Abatement and Revival Subrogation Suit by Surety to En-

force Judgment Paid by Him Against Lands of Principal Debtor is Judgment Creditor's Suit, Entitled to Precedence Over Subsequent Suit of Another Judgment Creditor; Other Judgment Lienors Should be Required to Come into Judgment Creditor's Suit by Surety, to Enforce Judgment Paid by Him Against Lands of Principal Debtor.

A suit by one claiming as surety and the right of subrogation to enforce a judgment paid by him, against the lands of the principal debtor, is a judgment creditors' suit, and should be given precedence over the subsequent suit of another judgment creditor to enforce against the same lands his judgment, and the other judgment lienors should be required to come into the first suit to enforce their liens. (p. 280.)

(Abatement and Revival, 1 C. J. § 93; Subrogation, 37 Cyc. p. 389.)

2. Same Pendency of Prior Suit to Enforce Judgment May Be Pleaded in Bar or Abatement of Second Suit.

The reason for the general rule prescribed by section 7, chapter 137 of the Code, which is also the general rule of equity practice, is to avoid vexatious suits and unnecessary costs, and the pendency of the prior suit may be pleaded in bar or abatement of the second suit. (p. 281). (Abatement and Revival, 1 C. J. § 38.)

3. Creditors' Suit It is sufficient if Creditors Suing to Enforce Judgment Against Land Represent Same Interests.

In the application of said rule, the plaintiffs need not be the same; it is sufficient if they represent the same interests, (p. 281).

(Creditors' Suits, 15 C. J. § 114.)

4. Abatement and Revival Error, if Any, in Refusing to Abate

Second Suit to Enforce Judgment Lien Because of Dismissal of First Suit on Merits, is Waived by Prosecution to Final Decree.

If, after a second suit is brought to enforce a judgment lien, the first suit is ordered to be heard along with it, and pending both suits, the judgment debtor defends the first suit and procures it to be dismissed on its merits, and from which decree no appeal is taken, and the second suit is prosecuted to final decree on the bill and commissioner's report, the error in the decree, if any, in refusing to abate the second suit, will be deemed to have been waived, (p. 282).

(Abatement and Revival, 1 C. J. § 152.)

5. Creditors' Suit Third persons, Parties to Joint Judgments Against Judgment Debtor, Should be Parties to Consolidated Judgment Creditors' Suit.

Where in judgment creditors' suits, consolidated or ordered to be heard together, as in this case, there are joint judgments against the judgment debtor and third persons, such third persons should be made parties defendant and served with process, and until then it is error to direct an order of reference or to take any other steps in the cause affecting their interests. (p. 282).

(Creditors' Suits, 15 C. J. § 117.)

6. Equity Defendant May File Answer to Bill Any Time Before

Final Decree.

By section 53, chapter 125 of the Code, defendant may of right file his answer to a bill at any time before final decree, and the court may not properly limit that right by any rule or order made in the cause. (p. 284.)

(Equity, 21 C. J. §549.)

7. Creditors' Suit on Showing by Answer and Affidavit That

Rights of Other Parties Should Be Adjudicated in Judgment

Creditors' Suit, Answer Should Be Filed and Parties Brought to Issue Thereon Before Final Disposition of Cause.

And when in such suit it is made to appear by such answer and an affidavit filed therewith, that other suits are pending in the same court, involves rights, and interests of the parties necessary to be adjudicated before a final disposition of the cause, and that other rights have intervened since the execution of the order of reference, which should be inquired into, and constituting grounds for affirmative relief, such answer should be filed and the parties brought to issue thereon before a tinal disposition of the cause. (p. 285).

(Creditors-Suits, 15 C. J. §111 [1926].)

8. Equity Rule Permitting Rejection] of Amended Answe Should Not Be Enforced Against Such Answer Setting Up Matters Calling for Affimative Relief.

The rule justifying the rejection of an amended answer being purely technical and not requiring strict enforcement, should not be enforced against an amended answer which sets up matters calling for affirmative relief in whole or in part, or where the matters set up therein are such that the court should have before it in order to a fair determination of the controversy. (p. 287).

(Equity, 21 C..1. §420.)

9. Action When Stay of Proceedings Will Be Ordered Awaiting

Another Suit Stated.

Where the judgment or decree in another suit will be decisive, and a stay of proceedings is essential to justice, it will be ordered in conformity with section 6 of chapter 136 of the Code. (p. 287).

(Actions, 1 C. J. §420.)

10. Creditors' Suit Evidence Necessary to Warrant Commissioner to Whom Suit is Referred to Report Liens on Debtor's Property Stated; Transcripts of Judgments Lodged with Commissioner to Hear Suit, Without Further Evidence, are not Sufficient Evidence of Amounts Remaining Due Thereon.

To warrant a commissioner in chancery to whom a creditors' suit has been referred, in reporting the liens on the debtors' property he must have legal proof thereof, and of the amounts remaining due thereon, at the time of his report; and transcripts of judgments lodged with him by attorneys, without further evidence, will not constitute sufficient proof of the amounts remaining due thereon. (p. 288).

(Creditors' Suits, 15 C. J. §158 [1926 Anno].)

11. Same Decree to Sell Land of Judgment Debtor Should Not Be Had Until all Liens Thereon and Their Amounts and Priorities Have Been Found.

There should he no decree to sell the lands of a judgment debtor until all liens thereon and their amounts and priorities have been found and adjudicated. (p. 289.)

(Creditors' Suits, 15 C. J. § 107.)

(Note: Parenthetical references by Editors. C..1. Cyc. Not part of syllabi.)

Appeal from Circuit Court, Lewis Couuty.

Suit by the Blumberg Bros. Company against Anna R. King and others. From a judgment for plaintiff, defendant named appeals.

Reversed and remanded.

Herbert M. Blair, for appellant.

Charles P. Swint, for appellee, Blumberg Bros. Co. Edward A. Brannon, for appellees, M. H. Pickering Co., H. G. Wilson, Martin J. Burnside.

Miller, Judge:

This suit was brought to September rules 1922, by plaintiffs, on behalf of themselves and all other alleged lien creditors of Anna R. King, who were made defendants to the bill and either served with process or proceeded against by publication, except J. R. Burkhammer, C. L. Bond and H. G. Wilson, resident defendants not served with process, but against whom no allegations were made or relief sought.

Prior to the institution of this suit, namely, on August 4, 1921, Martin J. Burnside, claiming the right of subrogation as an alleged surety for said Anna R. King, and accommodation maker of two notes upon which the Lewis County Bank, on July 16, 1921, had recovered a judgment against them jointly, aggregating $1,583.03, with interest and costs, and which had been paid by him, brought his suit against said King, on his own behalf and on behalf of all her other unsatisfied creditors, making them parties thereto, and setting forth in his bill the nature and amounts of their liens, the real estate owned by said King, and seeking a sale thereof to satisfy the same, and for general relief.

Mrs. King appeared and demurred to and answered Burnside's bill, July 18, 1922, in which answer she denied that Burnside was the accommodation maker of said notes, and the other notes made by him and held by said bank, but on the contrary that he was the principal therein and had executed the same to her for the consideration set forth in her answer, and was therefore not entitled to such subrogation or to enforce said judgment, or any judgment that might be rendered against him and her on the other notes referred to, and that so far as not paid by him, said judgments and debts should be enforced against him and his lands to the exoneration of her real estate.

On November 1, 1922, after the filing of the bill in the Blumberg Brothers Company suit, at September rules 1921, and before any proceedings thereon appear to have been taken, Mrs. King appeared and filed her plea in bar or abatement, that at the time said suit was brought, the Burnside suit, a general creditor's suit, had been instituted and was then pending, the object whereof was the same as that of the Blumberg Brothers Company suit, namely, to convene her creditors and subject her lands to the payment of their judgments, and that in equity and by virtue of the statute, section 7. chapter 139 of the Code, said second suit should be abated, and the first suit proceeded in to final decree.

On the hearing of said plea, and the objection of the plaintiff thereto that it was not filed in time, the court was of opinion that the plea was filed in time, and overruled the objection to the filing thereof. But upon consideration of said plea and the bill and answer in the Burnside suit, tendered by said King in support of her plea, the court was of opinion and found that the parties to said two suits were different and the relief prayed for different, and that said suit should not abate, but that the two suits should be heard together, and that there should be a reference to a commissioner in the Blumberg Brothers Company suit, which reference was then objected to, upon grounds assigned by said King. Accordingly the court then decreed that said suit of Blumberg Brothers Company do not abate, but that the two suits should be heard together, and that the suit of M. J. Burnside against Mrs. King and others was pending and undetermined on issues presented by her answer to the...