Castle v. Castle

• Decision Date: 09 May 1911
• Citation: 71 S.E. 385,69 W.Va. 400
• Parties: CASTLE et al. v. CASTLE et al. CASTLE v. GIBSON.
• Court: West Virginia Supreme Court

71 S.E. 385

69 W.Va. 400

CASTLE et al. v. CASTLE et al.

CASTLE v. GIBSON.

Supreme Court of Appeals of West Virginia.

May 9, 1911

Submitted April 4, 1911.

Syllabus by the Court.

The trial court has discretion in the matter of consolidating causes, and, to warrant a reversal of a decree on this ground, it must appear that such discretion has been misused to the prejudice of the party complaining.

It is error to decree costs in favor of one of the parties to a suit against another, in the face of a binding agreement between them that the suit should be dismissed without costs.

An appeal will lie to this court for such an error as to costs which have been made the subject of agreement, when the amount thereof exceeds $100.

Appeal from Circuit Court, Preston County.

Action by Mary C. Castle and others against George M. Castle and others, and by Joseph W. Castle against Milford C. Gibson. Suits were consolidated and a decree made, dismissing both and Joseph W. Castle appeals. Affirmed in part, and reversed in part.

Wm. G Conley, for appellant.

N. J Fortney, P.J. Crogan, and F. E. Parrack, for appellee Milford C. Gibson.

WILLIAMS P.

Two suits in equity were pending in the circuit court of Preston county, the first brought in June, 1897, by Mary C. Castle and others against George M. Castle and others, and the second brought in July, 1902, by Joseph W. Castle against Milford C. Gibson.

On the 28th of October, 1905, the two cases were heard together and a decree made, dismissing both. This decree required Joseph W. Castle to pay to Mary C. Castle all the costs in the first suit; the second suit was dismissed without costs to either party.

Joseph W. Castle, one of the defendants in the first suit and sole plaintiff in the second, has appealed, and assigns four grounds of error: (1) That it was not proper to hear the two causes together; (2) that it was error to decree costs against petitioner in the first of said causes; (3) that it was error to dismiss the second cause; and (4) that it was error not to decree specific performance according to the prayer of the bill in the second suit.

Milford C. Gibson was one of a large number of defendants to the first suit, and was the sole defendant in the second.

Pending the first suit, and after numerous depositions had been taken on both sides of the case, on the 15th of December, 1898, a written agreement of compromise was entered into between Joseph W. Castle, Mary C. Castle, M. C. Gibson, and others in which it was agreed that the first suit was to be dismissed, "agreed," and that each party should pay his own costs. All matters in controversy between the parties involved in the suit, which was in relation to the title to a certain tract of land and the timber which had been cut from it, were "adjusted and settled forever" by this agreement. The compromise agreement contained this contract between Joseph W. Castle and M. C. Gibson, viz.: "Joseph W. Castle hereby agrees that he will pay the defendant, M. C. Gibson, five hundred dollars ($500.00) within thirty days from this date, and the said Gibson hereby agrees that when the five hundred dollars above mentioned are paid he will execute and make the defendant, Joseph W. Castle, a deed of special warranty for all his interest in the farm, in the bill mentioned of one hundred and twenty-nine acres on which John Hartman lived and died." It was to specifically enforce this contract between Joseph W. Castle and M. C. Gibson that the second suit was brought. Depositions were taken by both plaintiff and defendant in the second suit. On the 6th of December, 1904, while the second suit was pending, and before any order of dismissal was made in the first suit, Joseph W. Castle and M. C. Gibson, who were the only parties to the second suit, made a second written agreement, by which Gibson was to pay Joseph W. Castle $500 and execute to him a deed with special warranty, granting all his right in the John Hartman farm, "saving and reserving to himself all of the coal lying under the vein known as the 'Three Foot Vein' now open on said place." The money was to be paid and deed executed by Gibson upon the dismissal of the Mary C. Castle suit, and the contract recites that her authority in writing for the dismissal had already been given. Joseph W. Castle was then to execute to Gibson a quitclaim deed for all right claimed by him in the coal reserved by Gibson. The contract then closes as follows: "It is further agreed between the parties hereto that the said two suits are to be dismissed at the December term, 1904, of the said court, 'agreed,' each party to pay his own costs incurred therein." The foregoing statement shows the relation between the two suits, and all the facts essential to a review of the decree appealed from.

There is nothing prejudicial to appellant in his first assignment of error. It is largely a matter of discretion with the chancellor whether or not it is proper to hear two causes together. Beach v. Woodyard, 5 W. Va. 231; McKittrick v. McKittrick, 43 W.Va. 117, 27 S.E. 303; Wyatt v. Thompson, 10 W.Va. 645; Patterson v Eakin, 87 Va. 49, 12 S.E. 144; 8 Cyc. 591-593. The first agreement of compromise did not appear in the first suit, but it was the basis of the second suit, and was made an exhibit with the bill. By consolidating the two suits, the court could consider its effect upon the rights of the parties in the first suit; otherwise it may have required an amendment of the pleadings in that suit to put it before the court. We do not see that the court has violated its discretion by consolidating the suits, or...