Kanawha Lodge No. 25 I. O. O. F v. Swann

• Decision Date: 03 December 1892
• Citation: 37 W.Va. 176,16 S.E. 462
• Court: West Virginia Supreme Court
• Parties: kanawha LODGE no. 25 i. o. o. f et al. v. SWANN et al.

16 S.E. 462

37 W.Va. 176

kanawha LODGE no. 25 i. o. o. f et al.

v.

SWANN et al.

Supreme Court of Appeals of West Virginia.

Dec. 3, 1892.

Equity—Cross Bill—Introducing New Parties —Appeal from Interlocutory Decree.

1. Under sections 35 and 36 of chapter 125 of our Code, an answer calling for affirmative relief has the same effect as a cross bill.

2. There is a distinction between a cross bill merely defensive in its character and one which seeks affirmative relief. In the former no new parties can he introduced; in the latter they may be, if the ends of justice so require.

3. Interlocutory decrees cannot be appealed from, except in cases provided for in section 1 of chapter 135 of the Code; and an order referring the cause to a commissioner in chancery to make an account is, in general, not an appealable decree.

(Syllabus by the Court)

Appeal from circuit court, Kanawha county.

Action by the Kanawha Lodge No. 25 Independent Order of Odd Fellows and First National Bank of Gallipolis, Ohio, against T. B. Swann and others, to enforce a judgment lien and specific liens on land of T. B. Swann. Decree of reference was entered, and defendants appeal. Appeal dismissed.

John S. Swann, for appellants.

Flournoy & Price, for appellees.

Lucas, P. The First National Bank of Gallipolis, a resident of Ohio, filed its bill of complaint at March rules, 1890, against T. B. Swann, Mary Swann, his wife, and sundry creditors of said T. B. Swann. This was an ordinary creditors' suit, and the object of the plaintiff was to enforce the lien of the judgment which it had obtained against said Swann by enforcing its lien against his real estate, of which he possessed a considerable amount. In addition to the ordinary scope of a creditors' bill, the object of the suit was to set aside sundry conveyances made by said Swann to trustees for the benefit of his wife, upon the ground that the same were voluntary, and with intent to delay, hinder, and defraud. Subsequently the Kanawha Lodge No. 25 Independent Order of Odd Fellows, in November, 1S90, instituted suit against Thomas Swann and sundry creditors of his to enforce a specific lien against a specific piece of property situated in the city of Charleston, against which it claimed a specific lien by virtue of an unrecorded agreement. Swann answered the respective bills, filing substantially the same answer to each, and treating both as creditors' bills, although the one last instituted was not of that character, and would not have called for a general order of reference. Baugher v. Eichelberger, 11 W. Va. 217. The answer of Mr. Swann demanded affirmative relief, and was the equivalent of a cross bill, inasmuch as it asked a discovery of the defendants, which is the proper subject of a cross bill. 1 Pom. Eq. Jur. § 198, note 4. Upon the filing of such cross bill, it is usually proper to stay proceedings until the same is answered and complete discovery made. In this case such a course was not pursued, but the court proceeded to a decree after having heard the two cases together.

The respondent Mr. Swann complains of the decree or order filing his answers, because in said decree there is taken a very fanciful distinction, and one not recognized by our Code, between a cross bill and an answer with a prayer for affirmative relief. Under our Code there is no such distinction, or at least none which would have applied to the pleadings in this case. See Code 1891, c. 125, §§ 35, 36. By section 35 an answer asking affirmative relief has the same effect as a cross bill, and, if such an answer be filed, the statute expressly declares that the respondent shall not file a cross bill for the same purpose. Nothing more need be said upon the objections to this interlocutory decree, as further discussion would be only a waste of time.

The form of this cross bill answer is objected to by the appellees, on the ground that it introduces new parties. The objection is not well taken. The dictum of Judge Green in the case relied upon by appellees (McMulIen v. Eagan, 21 W. Va. 250)...