Glascock v. Brandon.
| Decision Date | 11 March 1891 |
| Citation | 35 W.Va. 84 |
| Parties | Glascock v. Brandon. |
| Court | West Virginia Supreme Court |
A plaintiff may, in general, obtain an order to dismiss his own bill with costs as a matter of course; and, such dismissal on such motion of plaintiff having been entered, a motion by a defendant, made at the same term, to set aside such order, does not of itself have such effect, neither does it have the effect to suspend the operation of such order. It can not be rescinded or suspended by any such indirect method.
If a married woman relinquishes her contingent right of dower in land, under a definite promise, verbal or written, made at or about the time by her husband, that other property shall be settled on her in lieu of or as compensation for the interest thus relinquished, such settlement will be good against creditors having no specific lien, though made after such relinquishment. But if the value of the property settled exceeds the value of the dower relinquished, the deed, should be set aside as to the excess, and supported as to the residue. Yet the impeaching creditor, in order to set it aside as to such excess, must, under our statute, bring his suit within five years, unless he shows that the settlement was fraudulent in fact, as distinguished from being merely fraudulent in law.
J. II. Woods andS. V. Woods for appellant, cited 94 U.S. 580; 33 W. Va. 388; 69 Md. 348; 76 Va, 663; 78 Va. 460; 2 Min. Inst. 610; 24 W. Va. 441; 27 W. Va. 206; 3 Md. Ch'y 106; 10 W. Va. 321; 80 Va, 311; 84 Va. 726; Bump. Fraud. Cony. 283, 285, 289; Big. Fraud. 199; Wait Fraud. Conv. §§ 329, 239; 10 W. Va. 87; 1 Sto. Eq. § 355; 61 Md. 451; 3 Md. Ch'y 106; 33 Md. 587; 51 Md. 453; 22 W. Va. 365; 40 Md. 424; 45 Md. 291; 3 Gratt. 33.
Dayton & Dayton and T. P. R. Brown for appellees, cited Dan. Ch'y Pr. (Am Ed.) 795; 9 Paige Ch'y 247; 8 Paige Ch'y 79; 2 Johns. Ch'y 475; 1 Ves. Jr. 401; 18 Barb. 590; 4 Myl. & C. 194; 13 Fed. Rep. 112; 136 Mass. 192; 4 Paige Ch'y 227; 25 How. Pr. 358; Walk. Ch'y 360; 1 Dick. 280; 4 Munf. 207; 7 Abb. (IT. S.) 39; 1 Hilt. 265; 14 How. Pr. 287; 13 How. Pr. 258; 36 How. Pr. 240; 76 Ya. 63; Id. 766; 24 W. Ya. 279; 133 Mass. 141; 7 Peck 541; 18 Wall. 141; 3 Paige Ch'y 440; 53 N Y. 303; 30 Hun. 559; 11 Hun. 224; 5 Hun. 557; 56 Wis. 188; 15 Fla. 155; 26 1ST. J. Eq. 376; 17 111. 560; 8 B. Mon. 326; 11 B. Mon. 175; 5 B. Mon.298; 4 Mete. (Ky.) 59; 21Ind. 398; 18 Hun. 474; 32 Ohio St. 327; 17 Mo. 564; 2 Kent. Comm. 164; Sto. Eq. §§ 1372-3; 10 Pet. 594; 10 Yes. 164; 46 Ohio St. 407; 4 Munf. 251; 6 Munf. 1; 1 Rand. 219; 2 Band. 563; Gilm. 209; 29 W. Ya. 1; 15 W. Ya. 444; 28 W. Ya. 653; Code c. 104, s. 14; 10 S. E. R. 382; 10 W. Ya. 321.
This was a suit in equity brought in the Circuit Court of Barbour county in April, 1876, to set aside a deed as fraudulent. All the defendants appeared and demurred to the bill. On November 13, 1876, plaintiff having joined in the demurrers, they were argued and overruled. Defendant E. T. Brandon having died on 10th May, 1878, the suit was ordered to stand revived against his administrator. On the 9th of May, 1879, the following order was entered: "On motion of plaintiff, by his attorney, this cause is dismissed." On next day, May 10th, the following order was entered: "This day came the defendant W. M. McClaskey, who suggests that he has an interest in this suit, and who has heretofore appeared herein, and moved the court to set aside the order of dismission entered in this cause on yesterday, and reinstate the same on the docket." On May 8, 1880, the motion of defendant McClaskey was continued. On July 13, 1886, defendants Brandon and McClaskey having died, their deaths were suggested on the record. On 19th October, 1886, the suit was ordered to stand revived against their respective administrators as defendants. On the 30th of October, 1886, on motion of plaintiff and the administrator of McClaskey, the court sustained the motion, and ordered the cause to be reinstated upon the docket. The cause had been omitted from the docket from May term, 1879, to October term, 1886, and the order of dismissal entered at May term, 1879, had never been formally or directly set aside.
The facts which led to this suit are as follows: Defendant Campbell had obtained a judgment against defendant Brandon. Brandon obtained an injunction to the judgment and gave an injunction-bond with defendants McClaskey and C. P. Thompson as his sureties. The injunction had been dissolved, and suit brought on the injunctionbond. Defendant Campbell had assigned the judgment and the benefit of the injunction-bond to plaintiff Glascock. C. P. Thompson had con veyed his house and lot in the town of Philippi to defendant Bradford, trustee, in trust for his wife, defendant Harriet S., and his infant son, defendant Eddie Thompson. All these plaintiff, Glascock, had made parties defendant to this suit Campbell as his assignee; Brandon, McClaskey, and Thompson as debtors in the injunction-bond; Thompson as the party who had made to Bradford, trustee, the alleged fraudulent conveyance for the benefit of his wife and child. Defendant McClaskey had no interest except as a joint debtor, and to see that some or all of the liability should be made off his co-surety, C. P. Thompson.
Had the plaintiff at May term the right to dismiss his suit at his own cost? The suit was not on behalf of plaintiff and others. It stood upon no order for acccount. No pecree had been entered in which outside parties could be interested. The taking of proof had not been commenced that might have been used in another suit. Plaintiff's motion to dismiss was for an unconditional dismissal. It was not asked to be without costs or without prejudice, or with leave to prosecute any new suit in equity or at law. Defendant McClaskey had established no claim against plaintiff, or against any co-defendant. Plaintiff's dismissal of his suit was therefore madeas a matter of right, in the usual course; and, so far from defendant McClaskey having any right to gainsay it, the plaintiff himself ought not to have been allowed to reinstate the cause, except during the term, and not then, except for cause shown. Plaintiff made no motion to set the dismissal aside, and no such order was formally entered. The term ended, and the order of dismissal became a final order, and the cause a thing finally adjudged, unless the motion of defendant McClaskey had the effect to suspend or set it aside.
I do not think a plain order of dismissal on motion of plaintiff, in such a case, can be set aside by any such indirection, or be held to have been set aside. The effect of it was to ask the court to set it aside. The matter was in the power and under the advisement of the court during the term, and, when the court adjourned without setting aside the order, the effect was equivalent to overruling the motion of defendant McClaskey.
Could the court, after the lapse of seven years, and on mere motion, set aside the order of dismissal? Chapter 127, p. 795, Code, especially sections 8 and 11, gives the rule of practice, and defines the powers of the court in such cases after the term has ended. Section 8 provides that Section 11: "Any Circuit Court may, on motion, reinstate on the trial-docket of the court any case dismissed, and set aside any nonsuit that may be entered by reason of the non-appearance of the plaintiff within three terms after the order of dismissal may have been made or order of nonsuit entered." These two sections are a re-enactment, with modifications of section 8, c. 173, p. 718, Code Ya. (1860).
Section 11 is not intended to relate to all orders and decrees of dismissal, for that would comprehend all orders and decrees in favor of defendants those final, as well as those in terms without prejudice. It has plenty of subjectmatter, without giving it any such unreasonable scope. It covers cases of discontinuance proper, which are often entered as orders of dismissal in form. Nonsuits are sometimes entered as dismissals. See sections 6, 7, c. 125, p. 781, Code. Section 7 provides that the clerk shall at rules, in certain cases, as for failing for three months to file bill, enter the suit dismissed.
So defendant McClaskey at no time showed any right on his part to have plaintiff's order of dismissal set aside, and if plaintiff had any such right after the end of the term, and he shows none, he came too late, in any view, with his motion. Some twenty terms had elapsed instead of three.
On the merits, apart from this question of practice, the material facts are as follows: Defendant C. P. Thompson sold a tract of land of two hundred and twenty six acres to Abraham Talbott for the sum of twelve thousand, four hundred and thirty dollars, the last payment, six thousand, four hundred and thirty dollars, to he paid 2nd March, 1871. His wife, the defendant Harriet S. Thompson, refused to join in the deed relinquishing her right of dower, until and unless her husband would agree to buy for her a house and lot in the town of Philippi. To this the husband agreed at the time of the execution of the deed. Accordingly husband and wife, by deed dated 1st March, 1868, conveyed the land to Talbott. This verbal contract between husband and wife, made or repeated at the time she signed and acknowledged the deed, is proved by the husband and wife, by the justice who took the acknowledgment, and by one other witness. So that there can be no reasonable question of the fact that the wife...
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