Ceredo v. Huntington Distilling Co.

Decision Date07 December 1895
Citation41 W.Va. 530
CourtWest Virginia Supreme Court
PartiesFirst Nat. Bank op Ceredo v. Huntington Distilling Co.

1. Equity Practice Pleadings Answers.

Answers and other pleadings, except incases of injunction, can only be riled at rules or in court.

2. Judgment Judgment Creditors Res A djudicata. In a suit in equity to enforce a judgment lien against the real estate of the judgment debtor, the judgment, as between the judgment creditor and other judgment creditors, is conclusive of the justness and amount of the debt.

3. Judgment Impeachment of Judgment Collateral Attack.

Such judgment, valid on its face, can not be impeached by such other creditor except for fraud: and that can not be done otherwise than in a direct proceeding brought to set it aside on that ground.

4. Pleading Corporations Variance.

The name of a corporation is not the only means of identity. If some words be added, omitted, or changed in the spelling, in the true name of the corporation, this is not a fatal variance, if there be enough to distinguish it from other corporations, and to show that the corporation suing or being sued was the one intended.

5. Pleading Corporations Plea in Abatement Misnomer.

The misnomer of a corporation can not be taken advantage of by plea in abatement; but where formerly pleadable in abatement, the declaration and summons may, on the motion of either party, on affidavit of the right name, be amended by inserting the same therein. Code, c. 125, s. 14.

A case in which these principles are applied.

Simms & Enslow for appellant, cited 1 Black, Judg. § 171; 7 Leigh, 224; 29 W. Va. 385; 19 Johns. 41; 9 Cow. 437; 70 N. Y. 253; 11 How. 437; 1 Black, Judg. 260; 12 Vt. 617; 33 N. W. Rep. 834, 843; 28 Me. 232; 2 Mod. 308; 52 Me. 481; 1 Black, Judg. § 317; 116 Ind. 35; 15 W. Va. 677; 28 Gratt. 16, 22; 82 Va. 732; 76 Va. 620; 40 W. Ya. 224; 89 N. C. 584; 36 Minn. 85; 69 Mo. 281; 10 Ohio St. 584; 30 Mich. 441; 45 Mich. 642.

Vinson & Thompson for appellee, cited 34 W. Va. 748; 35 W. Va. 25; Black on Judg. § 213; 4 Gratt. 407; 31 Gratt. 580, 599; 1 Black on Judg. § 441; 18 Howard 404 (side page).

Holt, President:

On appeal from a decree of the Circuit Court of Cabell county in favor of the appellee against the Huntington Distilling Company, entered on the 10th day of April, 1895, decreeing certain judgments as liens against the real estate of the Huntington Distilling Company, and a sale of such real estate to satisfy the same, but giving the judgment of the First National Bank of Ceredo priority over the judgment of the Huntington National Bank, from which the latter appeals.

In July, 1894, the First National Bank of Ceredo brought its suit in equity against the Huntington Distilling Company, James A. Hughes, and the Huntington National Bank, alleging that on the 22nd day of March, 1894, it recovered a judgment against the defendants the Huntington Distill ing Company and James A. Hughes for the sum of one thousand three hundred and sixty four dollars and seventy five cents, and eighteen dollars and seventy five cents costs, and caused execution to issue thereon, which was duly returned "No property found," and it files a copy of its judgment, as an exhibit, which it had caused to be entered on the judgment lien docket; alleges that the distilling company is the owner of certain real estate, describing it; and among other things prays for a sale thereof to satisfy its lien.

On the 13th clay of August, 1894, the judge in vacation made an order in the cause referring it to a commissioner, to ascertain, state, and report the real estate location, quantity, and value of the distilling company, the number, kind, and amount of the liens thereon, with their order of priority, rental value of the land, etc. The commissioner fixed upon, and published due notice of the 29th day of September, 1894, at his office, in the city of Huntington, as the time and place of opening his account, which he completed and having retained it ten days for inspection of the parties returned and filed the same on the 31st clay of October, 1894.

While the cause was before the commissioner the Huntington National Bank brought in and filed with him its answer, and an answer was also filed before the commissioner purporting to be the answer of the Huntington Distilling Company.

On the 19th day of November, 1894, by leave of the court, the plaintiff filed exceptions to the report, on the ground that the commissioner erred in reporting its judgment a nullity, and the judgment of the Huntington National Bank for four hundred and ninety six dollars and thirty cents as the sole lien. On the 10th day of December, 1894, the Huntington Distilling Company appeared by its president and attorney, and asked leave to file a second answer, and that the one filed before the commissioner be stricken out. The Huntington National Bank objected, and the court took time to consider, and on the 10th day of April, 1895, pronounced the decree appealed from, in which it sustained the motion of the distilling company to strike out the answer tiled with the commissioner, and permitted to he filed the second answer, sustained plaintiff's exception to the commissioner's report, and gave it a decree for its judgment as the first lien in priority, for the judgment of the Huntington National Bank as the second lien, and that the land be sold, etc.

The third assignment of error is that relating to striking out the answer tiled before the commissioner and permitting the defendant the distilling company to file what is styled its ''second answer." A defendant may put his answer in before the commissioner as a statement brought in of his claim or grounds of defense; but there is no law for filing an answer before a commissioner. Answers and other pleadings, except in cases of injunction, can only be filed at rules or in court. Zell Guano Co. v. Heatherly, 38 W. Va. 400, (18 S. E. 611.)

Supposing, for the present, the plaintiff's judgment to be a valid judgment, did the court err in giving it priority over the judgment of the Huntington National Bank? The judgment of the First National Bank of Ceredo against the Huntington Distilling Company was entered on the 22d day of March, 1894, but the suit was on the ^docket of the March term, 1894, which commenced on the 19th day of March. So that it appears the judgment might have been rendered on the first day of the term, and therefore has relation to the first day of the term. But the judgment for the Huntington National Bank was rendered on notice to the 21st day of March, 1894, and judgment on the notice could not have been rendered on the first day of the term. Coutts v. Walker (1830) 2 Leigh. 268; Withers v. Carter (1848) 4 Gratt. 407, 418; Brockenbrough v. Brockenbrough (1879) 31 Gratt. 580, 600; Dunn's Ex'rs v. Benick 40 W. Va. 349 (22 S. E. 66). This general principle of the common-law, like many others, is of such remote antiquity, and so long recognized without dispute, that the reasons and policy on which it was founded are in a great degree left to conjecture. 1 Black, Judgm. § 441, citing Coutts v. Walker, 2 Leigh, 268. See 2 Freem. Judgm. § 369.

The remaining and important question is, did the plaintiff have a valid judgment? A duly certified copy of the record of the judgment, attested by the clerk of the circuit court of Cabell county, was produced and read in evidence as a part of the plaintiff's bill, and the law makes such attested copy evidence in lieu of the original. See Code, 1891, p. 821, c. 130, s. 5; 2 Freem. Judgm. § 407. And such original imports absolute verity, and when read proves itself, and, the judgment being valid on its face, the court determines by inspection the existence of the record and the validity of the judgment. And, as against other creditors, it is conclusive of the justness and amount of the debt, and cannot, on a bill to enforce the lien against real estate, be impeached, except for fraud and collusion. Bensemer v. Fell, 32 W. Ya. 15, 25, (12 S. E. 1078). See McNeel's Fx'rs v. Auldridge, 34 W. Ya. 748 (12 S. E. 851); 12 Am. & Eng. Enc. Law, 86; Candle v. Lord, 2 N. Y. 260; Vose v. Morton, 4 Cush. 27; Garland v. Rives, 4 Rand. 282. As to voidable writ or judgment, "see Ambler v. Leach, 15 W. Ya. 677; Cooper v. Reynolds, 10 Wall. 308; 2 Van Fleet, Former Adj. p. 913. These cases and others like them are decisive of these questions. They can not, in this proceeding, between these parties, and in a collateral way, be raised or taken advantage of. They are settled and concluded by the judgment, and the justness and the amount thereof are set at rest. Perchance the distilling company may have creditors who will suffer if the National Bank of Ceredo recovers a judgment against it, but that gives them no right to interfere with or take part in...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT