Foley v. Ruley

• Decision Date: 28 April 1897
• Citation: 27 S.E. 268,43 W.Va. 513
• Parties: FOLEY et al. v. RULEY et al.
• Court: West Virginia Supreme Court

27 S.E. 268

43 W.Va. 513

FOLEY et al. v. RULEY et al.

Supreme Court of Appeals of West Virginia.

April 28, 1897

Submitted February 8, 1897

Syllabus by the Court.

1. A plea in abatement, though in a chancery suit by one judgment creditor for himself and all lienors, may be withdrawn by the defendant filing it, and another defendant cannot avail himself of it nor rely on its withdrawal as error.

2. A summons commencing a suit may issue on, be returnable to, and be served on, the same first Monday in a month, if rule day.

3. When a suit under section 7, c. 139, Code 1891, has been begun by one judgment creditor for himself and all other lienors to enforce the lien of a judgment on land, no other lien holder can sue for the same purpose. If he does, the pendency of the first suit may be pleaded in bar and dismissal of the second suit.

4. When a demurrer to a bill is overruled, a time reasonable under the circumstances of the case must be given for answer; but when a time is fixed, objection to its shortness must be made, else the point is waived. A mere order of reference deciding nothing, may be made without such answer.

5. Amendment of a certificate of publication of a notice may be made under leave of the court, as in the case of amendment of return of service of process.

6. What is a sufficient description of land in a deed.

Appeal from circuit court, Doddridge county.

Separate bills by B. W. Foley, for the benefit of himself and other lien holders, against F. J. Ruley & Bro. and others, and by W. S. Stuart, for the benefit of himself and other lien holders, against said defendants Ruley. The two cases were consolidated, and from a decree for complainants defendants appeal. Affirmed.

JAS. HUTCHinson and C. T. Caldwell, for appellants.

W. S Stuart, John Bassel, C. W. Lynch, and M. H. Willis, for appellees.

BRANNON J.

B. W Foley, suing for the benefit of himself and other lien holders, brought a chancery suit against F. J. Ruley & Bro and others to enforce the lien of a judgment of the plaintiff and judgments of other parties against the land of Ruley & Bro., and afterwards W. S. Stuart, suing for himself and other lien holders, brought against F. J. Ruley & Bro. a chancery suit for, we may say here, a similar purpose. The two cases were consolidated, and a joint decree pronounced therein enforcing liens and selling lands to pay the same, and F. J. Ruley and others appealed.

The first point made against the decree is that the court should have sustained a plea in abatement filed in the Foley suit by W. S. Stuart, but the short answer to this is that Stuart withdrew that plea. It is said that he could not do that to the prejudice of the Ruleys, considering that this was a suit brought for the benefit of all lien holders, but it was the personal plea of Stuart, and if the Ruleys wanted to make the defense on that plea they should have filed one of their own. I know no law by which the plea, especially a plea in abatement, of one defendant can be insisted upon against the will of the one filing it. But that plea is bad as a plea in abatement. It is leveled at the writ, and should pray that the writ be quashed, not order whether the defendant should further answer. 1 Chit. Pl. 462; Steph. Pl. 345.

The second point made against the decree is that two pleas in abatement filed by F. J. Ruley in the Stuart suit were ignored by the court. One of those pleas alleged that the summons was issued February 5, 1894, returnable to the first Monday in February, 1894, which was the same day. That has long been a common practice, and was approved in the case of Spragins v. Railway Co., 35 W.Va. 139, 13 S.E. 45. The other plea set up the pendency of the Foley suit before the commencement of the Stuart suit, averring that Stuart was a defendant in the Foley suit. This is not exactly a plea of another suit pending between the same parties for the same cause. Such a plea has been sometimes called a plea in abatement, at other times a plea in bar. Bart. Ch Prac. 247. I regard this plea as in bar under the statute, and that it need not be filed at rules. A point is made against it because not filed at the first rules. Then what is its effect? It states two facts,-one, that another suit brought in behalf of all lien holders to enforce judgment liens against the real estate was already pending at the date of its institution. Is this a good bar to the Stewart suit, except under statute, as between living parties? One judgment creditor can bring his own suit on his own judgment to enforce his lien, unless he has been made a formal party in another suit. As against the estate of a dead man, it is also so. It is true that, after an order of account in a suit to administer a dead man's estate, if another creditor, with knowledge of it, bring a suit for the same purpose, he will pay the costs of his suit. Laidley v. Kline, 23 W.Va. 565. This seems to have been the established chancery practice to prevent numerous suits against a dead man's estate, all his assets being a fund for the payment of his creditors, and to avoid their exhaustion by numerous suits; but I do not understand that to be the practice in suits to enforce liens against land of a living man. As to the estate of a dead man there was no prohibition against separate suits by separate creditors until the court had made an order of reference for the convention of all the creditors, thus making the suit one for the benefit of all creditors; but our statute has very properly gone beyond this, and fully provided for a chancery suit to administer his real estate for the benefit of his creditors, and has provided that if, after the commencement of that suit, any creditor commence another suit, either in law or in equity, no costs shall be recovered in such last mentioned suit. Whether in such case a plea setting up the pendency of the former suit would be in bar, calling for the dismissal of the second suit, is not before us. That would rest on the construction of that statute,--chapter 86, Code 1891. In the case of liens against the realty of a living judgment debtor, our statute, in section 7, c. 139, Code 1891, has gone far beyond the rule of chancery practice before it, if it be as I have stated above. That statute plainly intends one suit, and one only, to enforce all liens resting upon the land, and to prohibit multiplicity of suits, devouring the land to the injury of both debtor and creditors. I think that, after a suit is brought by one lien holder for the benefit of himself and others, no other can sue, and though the suit be not so brought, yet another cannot sue after an account of liens is ordered for the benefit of all. The statute allows a defense of this kind to a second suit, because it says that the court may enjoin it and compel him who brings it to come in and assert his lien in the first suit, or may make such order in relation to it as the court or judge may deem right to protect the interests of all parties, and I have no doubt that the pendency of the first suit may be set up by plea in bar of the second suit, and that the court may dismiss the second suit upon it with costs, because that suit is brought in violation of law. This plea also averred that Stuart was a formal party to the Foley suit. That is another reason why he should not prosecute a second suit, for, as I understand the law, when a party is made a defendant to a suit as to a particular right and may receive in it relief, he must abide its result, receive his relief under it, else there would be endless confusion, great harassment to the debtor, and piling up of costs upon him. It is essential that these principles, to avoid multiplicity of suits, burdensome costs, and confusion of proceedings, be rigidly enforced. But in this case this plea was not followed up. The defendants did not bring it to hearing, nor prove the facts involved in it. Where there is a demurrer, and it is not expressly passed on, it is deemed to have been overruled, because no facts are necessary to be shown there, the bill showing them; but a plea introduces new facts, and they must be proven. Say that, as the cases were heard together, the facts stated in the plea would be shown by the record of the Foley case; what then? Looking at it, we find that the Stuart bill is more comprehensive than the Foley bill, embracing matters not embraced by the later bill; and particularly it attacks a conveyance of a tract of land to the wife of D. C. Ruley as voluntary and fraudulent as to creditors, a matter of importance to creditors not at all contained in the Foley bill. Now we shall have to treat this plea under principles governing the plea treated of in the books as a plea of another suit pending. It is in effect an allegation that another suit is pending between the same parties, on the theory that the same relief can be administered in one of the chancery suits as in both. Turning to Bart. Ch. Prac. 369, we find that in order that such a plea be available "it is requisite that the whole effect of the second suit should be attainable in the first, and if it appears in the face of the plea that this is not the case the court will overrule it, and it sometimes happens that the second bill embraces the whole subject in dispute more completely than the first. In such cases the practice appears to be to dismiss the first bill with costs, which puts the case upon the second bill in the same situation that it would have been if the first bill had been dismissed before the filing of the second. The common practice in such cases is to hear the causes together. The defense of another suit pending does not apply where the second bill, though by a different person, although for the same matter, as far as concerns the foundation of the...