Haener v. Peice.
| Decision Date | 18 December 1880 |
| Citation | 17 W.Va. 523 |
| Parties | Haener v. Peice et al. |
| Court | West Virginia Supreme Court |
1. Agreements made and acts done under a mistake of law are (if not otherwise objectionable) generally valid and obligatory,
2. A judgment by confession or otherwise will not be restrained by injunction on grounds purely legal, unless a defence at law has been prevented by fraud on the one side or ignorance of facts unmixed with negligence on the other.
3. An injunction to a judgment is not a writ of error at law, nor in the nature of such writ as a general rule, and as a general rule equitable proceedings by injunction do not lie to correct the irregularities and errors of courts of law, when such exist.
Appeal from and supersedeas to a decree of the circuit court of the county of Monongalia, rendered on the 22d day of September, 1876, in a cause in said court then pending, wherein Phillip W. Harner was plaintiff and William Price, and George W. McVicker were defendants, allowed upon the petition of said Harner.
Hon. Charles S. Lewis, late judge of the second judicial circuit, rendered the judgment appealed from.
Haymond, Judge, furnishes the following statement of the case:
This is a case upon bill of injunction. It appears that on the 18th day of January, 1868, the plaintiff and one William Hagans, as the securities of one George M. Hagans, made and signed their joint and several prom-isory notes, not negotiable, with the said George M. Ha-gans, the principal, to William Price for the sum of $1,720.25, payable one day after date, with interest from date, for money loaned at the date of said note by the said Price through his agent, William Wagner, to the said George M. Hagans; that the said George M. Hagans died in the latter part of December, 1873, to wit: about the 28th day of December, 1873; that the said George M. Hagans made several payments on said note during his life, but not in amount in the aggregate sufficient to cover the whole of the interest thereon by a small amount. It appears in fact, that the interest was paid up in full on said note annually up to and including the 11th day of May, 1872, and afterwardson the 6th day of January, 1873, the said George M. Hagans paid $100.00 by check on said note; this was the last payment made. It seems that one James C. McGrew and the said William Hagans were appointed by said George M. Hagans by his last will his executors, and that they qualified and acted as such executors. It further appears, that after the death of George M. Hagans, to wit, on the 27th day of February, 1874, the said Price brought his joint action of debt upon said note in the circuit court of Monongalia county against said William Hagans and James C. McGrew, executors of the estate of said George M. Hagans, deceased, and Philip W. Harner (the plaintiff) and said William Hagans, and the writ issued in said action was made returnable at the rules to be held in the clerk's office of said court on the first Monday of April thereafter. Said writ bears date the 27th day of February, 1874. It also appears, that on the day said writ was issued, and immediately afterward, the plaintiff (said Harner) in said clerk's office and in the presence of said Price and with his consent and in the presence of the clerk of said court and others made and executed a writing on the back of said writ, as follows:
It appears that he, plaintiff, immediately upon the executing and making of said writing in the presence of said Price delivered the same to said clerk, that immediately after this the plaintiff in addition to said writing in the presence of and with the consent of said Price confessed judgment before the clerk in said case'for the amount of the debt, interest and costs in said writing specified, which judgment so confessed is in these words, viz.:
" In the clerk's office of the circuit court of Monongalia county, West Virginia, on the 27th day of February, 1874, at ten o'clock and fifty-five minutes A. M., this day came as well the plaintiff by his attorney as the defendant, Philip W. Harner, in person, and the defendant, Philip W. Harner, acknowledged the plaintiff's action and confesses judgment for $1,807.16 and the costs. Therefore it is considered that the plaintiff recover against the said defendant, Philip W. Harner, the said sum of $1,807.16, with interest thereon from February 27, 1874, till paid, together with his costs herein expended.
'Teste: Augustus Haymond, Clerk" " Plaintiff's costs, $8.05."
It further appears by the return of the sheriff, that the said writ was executed on said William Hagans on the 1st day of April, 1874; but it does not appear, that the said writ was ever executed on the said executor McGrew, nor upon said William Hagans as executor. It further appears, that at rules in said clerk's office on the first Monday of April, 1874, the plaintiff dismissed the said action as to the said executors of said George M. Hagans, upon the ground that the said executors were improperly joined with the surviving promisors, Philip W. Harner and William Hagans; and thereupon and then and there the said Price by his attorney filed in said clerk's office in the said case his declaration upon said note in the ordinary form against the said Philip Harner and William Hagans. Afterwards, to wit, on the 24th day of September, 1874, it appears, that the plaintiff and said William Hagans appeared before the court by their attorneys, and on motion of the defendant, William Hagans, the office-judgment had at the rules against him was set aside, and thereupon said William Hagans filed a special plea in writing, which is a plea of the statute of limitations of five years, and the plaintiff took time to consider thereof. Afterwards on the 21st day of September, 1875, the said Price by his attorney in open court replied generally to said plea, and thereupon issue was duly joined. It does not appear, that a common order or office-judgment was taken in the case against said Harner; but it does appear, that on the 23d day of September, 1875, the said Harner appeared in court to said case and offered to file therein a plea of the statute of limitations of five years in due form, and the plaintiff, Price, objected thereto and moved the court to reject the same, and the court did reject the same, because, as stated in the order, the said Harner had theretofore confessed judgment in the clerk's office of the court for the whole amount of the plaintiff's demand. It also appears, that afterwards and on the day and year last named an order was made and entered in said cause at law as follows, viz:
" At a circuit court continued and held for the county of Monongalia, at the court-house of said county, on the 23d day of September, 1875, this day came William Hagans, by his attorney, and the plaintiff was solemnly called, but failed to come and prosecute his suit; whereupon the plaintiff is nonsuited; and the defendant waiv- ing damages, it is ordered, that the plaintiff pay to the defendant the costs by him about his defence expended, except an attorney's fee, which is also waived."
Afterwards, on the 31st day of October, 1874, the said Philip W. Harner filed his bill of injunction in the clerk's office of the circuit court of said county against said judgment and against said Price and George W. McVicker, sheriff of said Monongalia county. In this bill the plaintiff therein alleges, that said note was given for money previously due from said George M. Hagans to said Price and that shortly after the death of the said George M. Hagans, to wit: on the 27th day of February, 1874, the said Price instituted a suit on the said note in the circuit court of said county against the said executors as such and the said William Hagans and the plaintiff, and that on the day previous the said Price came to the house of plaintiff, who resides in the country some two miles from Morgantown, accompanied by a friend (one Jesse J. Fitch) and represented, that he had brought a suit, or was about to do so, on the note against the executors and William Hagans and plaintiff; that it was all right and he desired to save all parties all the costs he could, and that he desired plaintiff to go with him to Morgantown and confess a judgment, as it would be better for plaintiff, and it would save costs, if he would confess the judgment; and that plaintiff not suspecting there was anything wrong in the premises, and believing there was no defence to be or could be made by any of the defendants, and that all of them would confess the judgment or be made liable with him, replied to said Price and Fitch, that if it was all right for him to confess a judgment, he was willing to do so, as he did not wish to make unnecessary costs, and that he would accordingly go to town and attend to the matter on the next day; that the said Price and Fitch then left him and started to town; that plaintiff also went into town the next day, and when he arrived in town, he went to the store and business-house of said, George M. Hagans for the purpose of seeing the said executors in reference to the question of confessing a judgment on said note and ascertaining whether it would be right, and their purpose to do so, as represented by the said Price, who was then standing on the steps in front of said store-house, and that plaintiff informed him, that he wished to see the said executors about confessing the judgment, &c, before he did so, and was going into the store-room accordingly, and enquired of said Price, where they were, when he was informed by said Price, that he did not know, but the...
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