Et At. v. Petitioner

• Decision Date: 28 November 1916
• Docket Number: No. 3200.,3200.
• Citation: 79 W.Va. 322
• Parties: Eskridge et at. v. Thomas et al.
• Court: West Virginia Supreme Court

79 W.Va. 322

Eskridge et at.

v.Thomas et al.

No. 3200.

Supreme Court of Appeals of West Virginia.

Submitted November 21, 1916.

Decided November 28, 1916.

1. Usury Statutes Negotiable Instruments Law.

The act known as the negotiable instruments law (ch. 81, acts 1907; ch. 98a, Code) does not, by implication or otherwise, repeal, limit or qualify in any degree or in any particular §5, ch. 96, Code, declaring all contracts for the loan of money at a greater interest rate than now allowed by law void as to such excess, (p. 325).

2. Bills and Notes Usurious Contracts Validity.

A contract by statute declared void, because in part usurious, is as to such usury a nullity, and, although negotiable in form, no curency in the market and no innocence or ignorance on the part of the holder can impart validity to it. (p. 325).

3. Discovery, Bill of Construction.

A bill merely praying an injunction to restrain the prosecution of an action at law until a discovery can be had in aid of the defense thereto, also prayed, is purely a bill of discovery, and not one for relief. (p. 325).

4. Injunction Dissolution.

An injunction, awarded on such a bill, generally ought not to be dissolved on motion until defendant has a reasonable opportunity to answer the interrogatories propounded to him, or plaintiff a like opportunity to coerce such answer by proper procedure, (p. 325).

5. Same.

A defendant who answers such a bill may, in lieu of a motion to dissolve the injunction, move for an order to require plaintiff to speed the cause as to a defendant not answering, under penalty of a dismissal thereof or dissolution of the injunction, enforceable thereafter by notice and motion. 16 Cyc. 463. (p. 325).

6. Discovery, Bill of Nature of Relief.

A bill framed for the purpose of discovery to aid in defense of a law action is limited to that object, and its attainment by an answer to interrogatories operates to end the suit, although the bill also prays for an injunction to restrain temporarily the prosecution of that action. (p. 325).

Appeal from Circuit Court, Upshur County.

Suit by R. S. Eskridge and others against Wellington Thomas and others, and the Traders' National Bank of Buck-hannon. From a decree for complainants, the last-named defendant appeals.

Affirmed.

Young & McWhorter, for appellant.

Higgin botham & Outright, for appellees.

Lynch, Judge:

The plaintiffs made a negotiable note and several renewals of the same instrument payable to Wellington Thomas, who endorsed them in turn to the Traders National Bank in due course. Neither the date of the transaction out of which the indebtedness originally arose, or of any of the renewals, is disclosed except the last one. On it the endorsee sued the makers and endorser. The former then filed their bill against, the plaintiff in that action and the defendant Thomas to en- join its further prosecution. They allege "usury in said note and the preceding notes and the transaction preceding the execution of the first note", and their lack of knowledge of the "amount of usury in said transaction", and "that it is material to them that said note be purged of the usury therein". Wherefore, "being remediless in the premises save by the aid of a court of equity", they pray that defendants "be required to make full, true and perfect answer to every of the" interrogatories propounded in the bill.

In this manner plaintiffs seek to ascertain from both defendants "whether interest has been paid on said note, original note and renewals thereof above six per cent, and if so to what extent'' and, from Thomas only," whether in the first transaction, before the original note was executed", "there has been paid a greater amount of interest than six per cent, and if so to what extent".

Upon these allegations, the others being purely formal, the injunction prayed was awarded in vacation. To the bill Thomas has not appeared for any purpose; nor have any proceedings been instituted, to compel his attendance. The bank demurred, and, the demurrer being overruled, filed its answer, and therein averred the negotiation of the several notes in due course before maturity, without notice of any defect in the instrument or infirmity in the title of the endorser. These averments, replied to generally, the bank proved by its cashier Graham. By counsel for the parties it was agreed that at the time the original note was discounted, and at the time of the renewals thereof, neither the bank nor any member of its board of directors "had any notice or knowledge of any claim of usury on the part of the plaintiffs as between them and the payee Wellington Thomas". At this stage of the proceeding, the bank moved to dissolve the writ restraining the prosecution of the action at law. This motion the court denied, but modified the vacation order so as to permit the bank to proceed to judgment against Thomas.

The appeal awarded to it can be entertained only by reason of the authority conferred by clause 7, §1, ch. 135, Code, as the order is interlocutory, not final. The demurrer and motion overruled raised precisely the same questions. To these our investigations necessarily are restricted. The facts are involved only incidentally.

It should be remembered that the sole purpose of this suit is to test the conscience of the defendants, that plaintiffs may from them personally extract knowledge or information of the transaction and its sequential results in which they were joint or separate actors. The bill, while praying for general relief, apparently is a pure bill for discovery. It does not contain sufficient averments or prayer to permit the adjudication of the whole subject matter involved in the law action. The authorities generally hold that a bill asking no relief other than discovery is limited to that object, and upon obtaining it by the answer of the defendant the suit is ended. This rule is sustained alike upon authority and principle. 1 Pom. Eq. §191; Story Eq. §1483; Mit. Eq. Pl. 16; Telephone Co. v. Mohler, 51 W. Va. 6. Nor does such a bill become one for relief because it seeks an injunction to stay the action at law until the discovery is obtained. Russell v. Dickeschied, 24 W. Va. 61. What plaintiffs assumed Thomas knew that they did not know, as an aid to their defense in the law action, was the real object prompting this proceeding, and not his admission in pais. If any such admissions he made, they were available for use upon the trial stayed by the injunctive process.

Plaintiffs evidently were satisfied with the answer of the respondent bank, else they would not have signed the agreed statement of facts. That statement precludes a denial of its verity. It was accepted as true. But they did not by proper procedure require or attempt to require Thomas to answer. Nevertheless, their delay to inaugurate such proceeding did not alone warrant dissolution of the injunction. They could not, from the very nature of the bill, take proof to support its averments; wherefore they were not in default. While Shonk v. Knight, 12 W. Va. 667, says a plaintiff must be diligent in his effort to procure the answer of all the defendants upon whom rests the gravamen of the charges contained in the bill, it states the general rule to be that an injunction ought not to be dissolved until all the defendants implicated have answered. Russell v. Dickescheid, 24 W. Va. 61, applies this general rule to the dissolution of an injunction awarded upon a pure bill of discovery enjoining prosecution of a detinue action, and holds that until the defendant has answered the injunction ought not to be dissolved.. The record before us does not show lack of diligence on the part of the plaintiffs in not taking the necessary steps to coerce a response by Thomas to the interrogatories propounded to him. The injunction was granted March 10; four days later the Traders National Bank notified plaintiffs of its purpose to move a dissolution on March 15, 1916; the order refusing to dissolve was entered June 9 of the same year. At the same time, the court ruled upon the question of law raised by the demurrer. By its interposition the defendant challenged the legal sufficiency of the bill. For this delay plaintiffs were not in anywise responsible. They could not know what action the court would take on the demurrer or the motion to dissolve. Wherefore, the time intervening between the entry of the demurrer and the giving of the notice and the action of the court on both virtually operated in justification of plaintiffs' delay during that period. Besides, the defendant that answered was not wholly without a remedy for the default, if any, as by a motion for an order requiring plaintiffs to speed a hearing on penalty of a dismissal of the cause or dissolution of the injunction if thereafter they unduly delayed compliance with that requirement. We think, therefore, the court did not err in refusing to dissolve the injunction.

Although meager, the averments of the bill may be deemed and treated as formally sufficient. Section 6, ch. 96, Code, permits any defendant sued on a contract for the loan or forbearance of money at a greater rate of interest than six per cent to plead the usury in general terms, to which plea the plaintiff shall reply generally, and each party on the trial of that issue may introduce any available evidence that tends to sustain or traverse the existence of usury inhering in the contract in issue. Or the borrower may resort for aid in establishing the usurious character of the contract to section 7, which gives him the right to exhibit his bill in equity against the lender, and coerce him to state upon oath the money or thing lent and all transactions referable to such loan, and the interest or consideration thereof. These provisions are quite liberal, and perhaps were intended to render unnecessary the usual formal averments required either at law or in equity.

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