Gall v. Gall.
| Decision Date | 14 December 1901 |
| Citation | 50 W.Va. 523 |
| Parties | Gall v. Gall. |
| Court | West Virginia Supreme Court |
Where a petition is filed in a suit in equity by one not a party to it, and whose rights are not mentioned in the bill, and such petition asks relief touching the subject matter of the bill, and such petition discloses an interest in the petitioner in such matter hostile to the claim of the plaintiff, the plaintiff must file an amended bill to bring the petitioner and his claim before the court before there can be an adjudication of the plaintiff's rights. The mere petition does not make the petitioner a party for the purposes of decree. (p. 525).
Where necessary parties, as disclosed by the record, are not before the court, a decree affecting their lights will be reversed and the cause remanded for an amended bill bringing them and their rights in, without passing on the merits. (p. 525).
One not a party to a bill can make no defense to it by demurrer or answer, (p. 526).
Where a bill seeks subrogation to a lien on land, and there are other persons holding liens on the land in conflict with such claim of subrogation, they must be made parties to the bill, (p. 527).
Appeal from Circuit Court, Barbour County.
Action by A. J. Gall and others against G. W. Gall. J. N*. B. Grim filed petition to amend. Denied, and petitioner appeals.
Reversed.
Melville Peck, for appellant.
Sam V. Woods, for appellees.
Brannon, President:
There was a judicial sale of lands in Randolph County at which George W. Gall, Jr., became the purchaser, and in part payment of the purchase money he drew certain checks on the Tygart's Valley Bank of Philippi, and gave his note with a surety for the balance. Later a suit was brought to resell the land for that note, and the land was sold under the decree in the second suit, and the land realized a sum leaving a surplus after satisfying the debt decreed against it as unpaid purchase money, which surplus is in the hands of the receiver of the court. The said G. W. Gall, Jr., was at the time cashier of said bank, and had executed a bond as such cashier with A. J. Gall and B. M. Gall as sureties therein, and he defaulted as such cashier, and the said sureties paid off the amount of his defalcation. They filed a bill in the circuit court of Randolph County stating that said checks drawn for said cash payment under said first sale were sent by the payee therein, E. D. Talbott, to said bank for payment, and Talbott, supposing that they had been entered to his credit on the books of the bank, drew checks to an amount beyond what appeared to his credit on the bank books about equal to those checks; in other words, that Gall as cashier allowed this overdrawing, and thus paid those checks, and thus became liable to the bank for their amount; and that his said sureties in paying his defalcation, amounting to six thousand dollars, a much larger sum than those checks, which amounted to one thousand six hundred and thirteen dollars and forty-eight cents, had paid those checks; and that as those checks represented purchase money for the land, the said sureties were entitled to be subrogated to the lien of the vendor to the amount of those checks, and they prayed in their bill that the said surplus, left after paying the said decree for purchase money in the second suit, might be subjected and applied to satisfy the amount which they claimed to have paid, represented by said checks. The suit was transferred to the circuit court of Barbour County.
Later J. N. B. Crim filed a petition in said suit setting up that he had recovered and owned numerous judgments against George W. Gall, Jr., which were docketed in the judgment lien docket of Randolph County, where the said lands lie, and that said judgments were liens on the lands, and consequently liens on the said surplus, and he prayed that the said surplus might be applied to the payment of his judgments. The plaintiffs in said suit were made parties to said petition, and they demurred thereto, and their demurrer was sustained and the petition was dismissed, and Crim has appealed.
The petition shows that Crim's judgments were liens on the land of G. W. Gall, Jr., and that Crim had an interest in the bone of contention, that is, this surplus fund. He had a right to litigate with A. J. Gall and B. M. Gall their claim to subject that fund to their demands; in short, both sides claimed the right to the same fund, inevitably so. "It is a cardinal rule in equity that all persons materially interested either legally or beneficially in the subject matter of the suit must be made parties to the suit." Rexroad v. McQuain, 24 W. Va. 32. When that petition came into the case it disclosed this interest of Crim conflicting with the claims of the Galls, and it then became the duty of Galls to amend their bill to make Crim a party, and to. set up that conflicting claim of Crim, based on liens binding that fund, to the end that there might be square litigation between these conflicting claims based on allegations of the bill. Though Crim's judgments were docketed, he was not made a party, nor were said judgments mentioned, and therefore there could he no decree upon that bill touching this conflict. In Shinn v. Board, 39 W. Va. 497, it is held that when a person files his petition to be admitted as party in a pending suit in equity, in which no allegation is made naming or referring to him in any way, and no relief is prayed against him, and he is admitted to become such party, until he has been made a party by some allegation in the bill as amended, he does not become a party. See also McCoy v. Allen, 16 W. Va. 724. "Where proper parties are not properly before the court, the decree will be reversed and the cause remanded for further proceedings." Crichard v. Crouch, 41 W. Va. 503; Miller v. Morrison, 47 Id. 664.
These principles, it seems, require us to omit passing on the merits of the controversy between Galls and Crim. It has been a question of great perplexity to me whether we should...
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