Hayzlett v. McMillan

• Decision Date: 01 November 1877
• Citation: 11 W.Va. 464
• Parties: Hayzlett v. McMillan et, al.Absent, Johnson, Judge).*
• Court: West Virginia Supreme Court

11 W.Va. 464

Hayzlett

v. McMillan et, al.Absent, Johnson, Judge).^*

Supreme Court of Appeals of West Virginia.

Decided November 1, 1877,

1. It is a general rule in equity, that an injunction will be dissolved at the hearing of the motion to dissolve it on bill and answer sworn to, if the answer fully, fairly, plainly, distinctly and positively denies the allegations in the bill, on which the injunction was granted, and the material allegations of the bill are not supported by proof other than the affidavit verifying the truth of its allegations.

2. Generally an answer to a bill in equity can only be filed during the session of the court, or at the rules, but by our statute an exception is made in cases of injunction. The larger powrer to entertain and decide the motion to dissolve embraces that of receiving the answer and also replication thereto and making them a part of the record.

3. Under the provisions of the act of the Legislature, entitled "An act to authorize circuit judges in vacation to dissolve injunctions," it is competent for the judge of a circuit, in which a case is pending wherein an injunction is awarded, to dissolve such injunction in vacation, after reasonable notice to the adverse party, in a county of his circuit other than, that, in which such injunction cause is pending.

4. The word "vacation," as employed in said act, means "vacation" of the circuit court of the county, in which such cause may be pending.

An appeal from, and supersedeas to, a decree of the circuit court of Wirt county, rendered on the 24th day of February 1875, dissolving an injunction awarded the plaintiff in a certain suit in equity pending then in said court, wherein Lewis Hayzlett was plaintiff, and Jordan McMillan and others were defendants.

The facts sufficiently appear in the opinion of the Court.

Hon. J. M. Jackson, Judge of the fifth judicial circuit rendered the decree complained of.

John A. Hutchinson, for appellant.

C. C. Cole & D. H. Leonard, for appellees.

Haymond, Judge, delivered the opinion of the Court:

The plaintiff in his bill alleges, that he verily believes that Jordan McMillan is justly indebted to him in the sum of $800.00, amount of certain notes for borrowed money, with interest; that said indebtedness arises on said notes, and also out of certain transactions had with said McMillan, when the plaintiff and said McMillan were co-partners in trade and business in the county of Wirt in a lease for oil purposes at Oil Rock; that on the 27th day of September 1869 the said McMillan instituted suit in equity in the circuit court of said county, for the purpose of settling up and closing said partnership business, that various and different reports have been made therein, which have been set aside; and enough has appeared in said reports to show that said McMillan owes plaintiff a very large sum of money; that said suit is still pending. Plaintiff also further avers that said McMillan, claiming that plaintiff and one Charles Gay as co-partners owed him a large sum of money, brought an action of assumpsit against them in said court, and that Gay being a non-resident, service of process was not made upon him, but plaintiff was served and defended the said action; but judgment was recovered against him for $247.50, with interest and costs, as will appear by a copy of said "judgment to be made a part hereof;" that an execution was issued on said judgment against plaintiff, and levied on his personal proper- ty; that he gave a bond for the forthcoming of said property to the sheriff of said county; that the same was forfeited, and a judgmenttaken thereon at the-term of said circuit court, and a writ of fieri facias issued on said last mentioned judgment against plaintiff and his security thereon, W. J. Robinson, which went into the hands of said sheriff for collection;that the said sheriff has levied the same upon the personal estate of plaintiff, mentioned in the return of said sheriff thereon, consisting of steam mill, engine, boiler and lease, as will appear by reference to a copy of said fieri facias and return to be filed herewith as part of this bill; that the amount of the last mentioned execution is $-; that after obtaining said judgment, and after it became apparent to him that plaintiff was bound to obtain a decree against him in said suit to close up said partnership, the said McMillan assigned the said judgment to one D. H. Leonard, who now claims to own and have the right to enforce the same against plaintiff; plaintiff charges that he is entitled inequity to the amount of all indebtedness, which said McMillan owes him, as an offset to the said judgment and execution; that said McMillan made said assignment, well knowing his said indebtedness to plaintiff, and for the purpose of defrauding plaintiff out of his said claim against him; that the said McMillan, as plaintiff has been informed and believes and so expressly charges, is insolvent and bankrupt; that he is indebted in much greater amounts than he is able to pay; that unless plaintiff can offset said debt which McMillan owes him, he will suffer loss; that he has no disposition to prevent the payment of said judgment, except to protect himself in the premises; that the said Leonard well knew the circumstances, pendency and nature of said chancery suit, and the insolvency of said McMillan at the time of said assignment. Plaintiff also avers that he is advised and believes that the enforcement of said execution ought to be suspended, until the final decree in said cause is entered. He also alleges, that the said sheriff has advertised his property to be sold under fieri facias on the 3d day of December 1874, and that if the sale proceeds, it will cause irreparable injury, loss and damage to plaintiff, in view of the facts; that the has no means whatever of recovering anything from said McMillan by reason of his insolvency, or from said Charles Gay, who is also insolvent and a non-resident. Plaintiff makes Jordan McMillan, W. J. Robinson, D. H. Leonard and J. C. Hale, sheriff of Wirt county, parties defendant to his bill and prays that his bill may be filed in said chancery cause, and be treated and regarded as a part of said cause; that said defendants may answer the same upon oath; that the said McMillan, Leonard, J. C. Hale, sheriff, &c, their agents, attorneys and servants may be restrained from all further proceedings on the said judgment and fieri facas, until the final hearing and determination of the suit in equity between said McMillan and plaintiff in settlement of said co-partnership; and that plaintiff may have said judgment and fieri facias offset by the demand, which is due from said McMillan to plaintiff; and that plaintiff may have such other and further relief in the premises, as to a court of equity may seem meet &c. The bill is verified by the affidavit of plaintiff in the usual form. This bill, it seems, was presented to the Judge of the sixth judicial circuit of this State, and on the 2d day of December 1874 he granted an injunction, as prayed for in the bill, upon the terms prescribed in the order made by him granting the same. On the first Wednesday in December 1874 plaintiff filed his said bill, with said order granting said injunction thereon, in the clerk's office of the circuit court of said county of Wirt. It appears by the record that afterwards, and at December rules 1874, the said defendant, Jordan McMillan, filed in the said clerk's office his answer to said bill, in which he says it is not true, that he is indebted to plaintiffs in the sum of $800.00 on certain notes or any other account, or in any sum whatever; he admits that it is true, he and plaintiff entered into a co-partnership in the fall of 1886, for the purpose of merchandising at Oil Rock in said county; and that said co-partnership was eontinued until the spring of 1867; and that he (McMillan) failing to get a fair and amicable settlement of said copartnership, instituted a suit in chancery in the said circuit court of Wirt county, to obtain a settlement of said co-partnership; that he verily believes that plaintiff owes him a large sum of money, which he ought to and believes will recover in said suit; he admits that the said suit has been repeatedly referred to commissioners of the court, with instructions to settle the matters complained of in said suit, and that the same has also been submitted to arbitration of W. W. Van Winkle and K. B. Stephenson (two gentlemen learned in the law,) as arbitrators, but he positively denies that said commissioners, and arbitrators' reports, or any of them, show a large balance, or any balance whatever in favor of the plaintiff; but on the contrary, each and all of said commissioners, and also said arbitrators, report a balance in favor of respondent, as follows: F. T. Lockhart, commissioner, made and stated his report of co-partnership, and filed the same in the cause on the 20th day of June 1871; that by reference to the said report it will be seen, that said commissioner found the sum of $1,087.07 due from the plaintiff to respondent after allowing a credit of the two notes, referred to by said complainant in his bill amounting to $660.00, which are filed in said cause by said plaintiff as sets-off, and were ail owed to him as such by said commissioner;that said repot was excepted to by plaintiff, and on his motion was re-committed to the the said commissioner;that, on the 7th of November 1870 the said commissioner made his further report, showing that said commissioner made his further report, showing.

the sum of $462.96, and that he was also chargeable with one-half of the goods purchased by the said firm of McMillan & Hayzlett, amounting to $2,217.17; that the said report was also excepted to by the plaintiff, and by consent and agreement of the plaintiff and respondent, all the matters in controversy in said suit were referred to final arbitration of W. W. Van Winkle and K. B. Stephenson, who,...