Hyman v. Et At.

• Citation: 10 W.Va. 298
• Court: Supreme Court of West Virginia
• Decision Date: 01 May 1877
• Parties: Hyman, Moses & Co. v. Smith et at.

10 W.Va. 298

Hyman, Moses & Co.

v.Smith et at.

Supreme Court of Appeals of West Virginia.

Decided May 1, 1877.

1. Where a decree is final, a bill of review is proper, and where

the decree is interlocutory, a bill in the nature of a bill of review and petition for a re-bearing is proper.

2. An interlocutory decree may be altered and reversed upon re-

hearing, without the assistance of a bill in the nature of a bill of review, if there is sufficient matter to alter or reverse it appearing upon the former proceedings. The new investigation is often, and perhaps usually, brought on by a petition for a re-hearing where there is no defect to be supplied.

3. The office of a supplemental bill, in the nature of a bill of re-

view, is to bring before the court new matter discovered since the time when it could have been used in the cause at the original hearing. Such supplemental bill, it seems, cannot be filed without the leave of the court, nor without an affidavit similar to that required in the like case of a bill of review.

4. A commissioner's report, if erroneous upon its face, may be

objected to at the hearing of the cause, though no exception be previously filed; and also in the appellate court, though no exception appears to have been taken in the court below; but without such exception, it cannot be impeached by adult parties on grounds, and in relation to subjects, which may be affected by extraneous testimony.

Hyman, Moses &, Co. instituted a chancery suit in the circuit court of Kanawha county against Allen M. Smith and others, the object of which was to subject the lands of said Smith to the payment of a judgment.

Bradley, Kyle & Co., the appellants here, on the 22d of June, 1869, joined with others in a petition, then filed in said cause, in claiming liens upon said lands by vir- tue of their several respective judgments, in said petition named, and the petitioners were made parties"; plaintiffs to the cause. The cause was referred to a commissioner of the court, who, by his report, allowed said appellants less than they claimed. By decree of 11th November, 1869, the court confirmed the report of the commissioner, and directed that before said appellants should receive any money from the sale of the land, which was ordered to be made by said decree, they should surrender or re-assign to the defendant, Allen M. Smith, certain claims theretofore assigned by him, as collateral security, to them.

On the 15th July, 1872, the court below, by its decree, refused to allow said appellants to " file a supplemental bill in the nature of a bill of review " in said cause.

On the 25th July, 1872, Bradley, Kyle & Co. filed another petition in the cause, asking that said commissioner's report might be corrected, and that such orders might be had as might be necessary to correct the errors of which they complained. On the 24th of June, 1874, the court, by its decree, dismissed this last named petition.

Bradley, Kyle & Co. obtained an appeal from, and supersedeas to, said decrees.

Hon. Joseph Smith, Judge of the seventh judicial circuit, rendered the last named decree. The record does not disclose by what judge the other decrees were rendered.

Haymond, Judge, in his opinion, gives a full statement of the facts of the case.

A. Burleiv and Mollohan & Nash for the appellants, referred the court to the following authorities:

Shirley v. Long, 6 Band., 764; 2 Bob. Old Pr., 312; Coleman v. Lyne's ex'r, 4 Band., 456; Carneal v. Banks, 10 Wheat, 181; Code W. Va., ch. 135, §1; Wiser v. Blackley, 2 Johns. Ch. 490; Whiting v. Bank of the United Stales, 13 Pet., 13; 2 Rob. Old Pr., 414, 418; Adams' Eq., side page 116; Story's Eq. PL, §404, 407; Adams' Eq., side pages 397, 771; Bennett v. Winter et al, 2 Johns. Ch. 205; Hodges v. Davis, 4 H. & M., 400; Jube's Eq. PL, 67; Cocke's adm'r v. Gilpin. 1 Rob. (Va.) 33; 2 Rob. Old Pr., 489; Paup's adm'r v. Mingo, &c, 4 Leigh, 163; Royal's adm'r v. Johnson, 1 Rand., 421; 1 Ves. Jun., 93; Radley et al. v. Shaver et al., 1 Johns. Ch., 20'1.

T. B. Swann, and Smith & Knight for appellees, relied upon the following authorities:

2 Mad. Ch., 539; 2 Freem. Ch., 182; Hill v. Bowyer, 18 Gratt, 365; Beam's Orders in Ch., 1; Perry v. Philips, 17 Ves., 173; 22 C. R., 491; 2 Mad. Ch., 538; 3 Johns. Ch., 127; 3 P. Win's, 381; 2 Mad. Ch., 536; Hard., 342, 451; Cooper, 92; 3 Johns. Ch., 126; 16 Ves., 348; Cooper, 91; 1 B. & B., Livingston v. Hubbs, 141; I. C. R., 124; 3 Atk., 25; 3 I. C. R, 120; 3 Jac, & W., 243; 1 How., 175; Story's Eq. PL, 460, §408, 409; 1 West, 682; 3 Atk., 33; 2 Atk., 533; 2 Johns. Ch., 488.

Haymond, Judge, delivered the opinion of the Court.

The firm of Hyman, Moses & Co., at rules in November 1866, filed their bill in the clerk's office of the circuit court of the county of Kanawha against Allen M. Smith and others. The object of the bill is to enforce the liens of two judgments against the lands of Allen M. Smith, one of which the plaintifls, (Hyman, Moses & Co.) recovered against defendant, Allen M. Smith in the circuit court of Kanawha county, in 1866, for the sum of $629.22 with interest from the 27th day of December, 1857, and $7.15, costs, and the other was recovered at the same term of said court, against the said Allen M. Smith, of the firm of Rock & Smith.

On the 15th day of April, 1867, the cause came on to be heard on the bill, and exhibits, taken for confessed as-to all the defendants, and the court referred the cause to", a commissioner to take state, and report as follows: 1. "The nature and amount of plaintiffs claims, and whether the defendant, Allen M. Smith, has sufficient personal property, subject to levy, to satisfy the same. 2. What real estate the said Allen M. Smith has in this State, and the liens against the same by trust deeds, judgments or otherwise, and priorities thereof. 3. Whether the rents, issues, and profits of said real estate will pay off and discharge said liens, and the costs of this suit within five years. 4. Such other and further matters as the said commissioner shall deem pertinent, and either of the parties may require," &c On the 22(1 of June, 1869, the appellants (Bradley, Kyle & Co., J. E. Wynne & Co., and Flora A. Wyatt, executrix, &c.,) presented to the court their petition, in which it was alleged by Bradley, Kyle & Co., that at the March term, 1858, of the said circuit court of Kanawha county, they recovered a judgment against said Allen M. Smith, John N. Clarkson, Anderson A. Rock, and Win, A. McMullin, for the sum of $980, to be discharged by the payment of $490.18, with interest thereon from the 6th day of January, 1858, and $4.66 costs. Also that at the July term, 1858, of same court, they recovered a judgment against said Smith and said Rock, for the sum of $745.00 to be discharged by the payment of $372.49 with interest thereon from the 23d day of April, 1858, until paid, and costs, $6.64. That also, at the; same term of said court, they recovered a judgment against said Smith, Clarkson, McMullin and Rock, for the sum of $417, to be discharged by the payment of $208.67, with interest thereon from the 22d day of April, 1858, and $4.66 costs. Also, that in August, 1858, they recovered before the same court a judgment against the said Allen M. Smith, Joseph Smith and Hezekiah Turley, for the sum of $629.42, with interest thereon from the 10th day of November, 1856, until paid, and $8.70 costs; that upon the last named judgment, $462.38 was credited on the 4th day of "October, 1859, leaving the remainder of said judgment, viz: $167.04, with interest from the last mentioned date still due and unpaid. The petitioners, at the close of the petition, pray to be made parties plaintiffs in the said suit ol Hyman, Moses & Co.," that their interests in the premises may be heard, that the real estate in the bill of complaint mentioned be sold, and that their said judgments, according to their priorities and liens, may be satisfied out of the proceeds of any sale of lauds or other property that may be decreed by the court in this cause." Official copies or abstracts of said judgments in said petition mentioned are filed therewith as exhibits. And the court, on said 22d day of June, 1869, made an order in the said cause of Hyman, Moses.& Co., in relation to said petition in these words:

" The petition of Bradley Kyle & Co., J. E. Wynne & Co., and Flora A. Wyatt, executrix, being this day presented in open court, showing that they are judgment creditors of Allen M. Smith; that their respective judgments set out in said petition are liens on the real estate of said Smith, and that the same are existing and unpaid, on motion of A. Burlew, and by consent of T. B. Swann, the attorney of said Allen M. Smith, it is ordered that said petition be filed, and the relief prayed for in the same be granted."

A. Burlew was, at that time, an attorney and commissioner of the court. It appears that A. Burlew, as commissioner of the court, executed the order of reference made in the cause, and his report made to the court was closed the 18th September, 1869.

At a term of the court held on the 11th day of November, 1869, the cause came on to be heard upon the bill exhibits filed therewith, the several petitions of Atwood & Co., administrator of Thomas West, Bradley, Kyle & Co., J. E. Wynne & Co., and all pleadings, orders and decrees theretofore filed, made and entered therein, and upon the report of Commissioner Bur- low, filed in the cause, and the exceptions taken to the said report thereon endorsed, and the court, in and by its decree then made, overruled the exceptions to the report, and approved and confirmed the same. The court also entered, as a part of its decree, its opinion that the order of priorities of the several judgments which are reported in the report of Commissioner Burlew as liens upon the real estate of the defendant, Allen M. Smith, is correctly stated in the said report. And the court decreed that unless the said defendant, Allen M. Smith...