LaFevee v. Billmyer.

• Decision Date: 31 July 1871
• Citation: 5 W.Va. 33
• Parties: Daniel LaFevee, v. John T. Billmyer et al.
• Court: West Virginia Supreme Court

5 W.Va. 33

Daniel LaFevee,

v.John T. Billmyer et al.

Supreme Court of Appeals of West Virginia.

July Term, 1871.

1. Courts of Equity have jurisdiction of matters of account. 1st, Where there

are mutual demands, and a fortiori, when complicated. 2d, Where the accounts are on one side and a discovery is sought that is material to the relief. 3d, Equity having taken jurisdiction lor diseovery, will, to avoid multiplicity of suits, administer suitable relief.

2. Courts of equity decline jurisdiction in matters of account, 1st, Where the demands are all on one side, and no discovery is claimed or necessary. 2d. Where on one side there are demands, and on the other mere payments or setoffs, and no discovery is sought or required.

3. If a bill for an account in respect of particular items, fails to sustain the demand upon these particular items, the court will not permit a general vague charge that the accounts are voluminous and intricate, which is inserted mainly as a pretext for the purpose of bringing the case within the jurisdiction of a court of equity, to protect the bill against a demurrer for want of equity.

4. A case in which a demurrer to a bill brought by a sheriff against his deputy, charging default in settlement of his accounts, was properly sustained, under the principles above enunciated.

This was a bill in equity, filed in the circuit court of Berkeley county, at June rules, 1869. The decree sustaining the demurrer and dismissing the bill was rendered at the October term, 1869.

The opinion of Judge Moore contains an ample statement of the matters in controversy.

The plaintiff appealed to this court.

C. J. Faulkner for the appellant.

Andrew Hunter and Van Swearingen for the appellees.

Moore, J. This case has entered this court on appeal, from the judgment of the circuit court of Berkeley county, sustaining the demurrer to the bill and amended bill, and dismissing the said bills with costs. So far as my research has extended in the investigation of the question, i must admit it is a case novel in the courts. The plaintiff filed his bill in said circuit court, alleging that he had been elected and qualified as sheriff of said county for the term of office commencing January 1st, 1859, and ending January 1st, 1861; that early in. 1859 he appointed the defendant, John T. Billmyer, a deputy to act for him in the discharge of the duties of said office: that said Billmyer, with a view to the proper indemnity of plaintiff executed on the 14th February, 1859, a bond, in the penalty of thirty thousand dollars, made payable to plaintiff, with Solomon Billmyer, Martin Billmyer, Adrian W. Jones, M. S. Billmyer and David F. Billmyer as his securities; conditioned that said John T. Billmyer, during the term he was to act as such deputy, should make true and faithful collections and account for all taxes imposed by law, and payable within the district to which he was assigned; to collect county levies and parish assessments, and account for and pay the same in such manner as the law directs: to collect and account for all fines, forfeitures, and amercements accruing to the Commonwealth in said county; to receive all officers' fees in the district for collection, and to account for and pay the same to the persons to whom they were payable; to collect and account for all executions that might be placed in his hands for collection, and to perform all other duties incident or in any wise relating to his office as deputy sheriff, and in all respects to indemnify the said plaintiff against all debts, interest, costs and damages which he may incur in consequence of the official acts of said deputy: that the said deputy proceeded to act as such, and continued to hold the said office during the plaintiff's sheriffalty; that during the period a large amount of executions were placed in. said deputy's hands, and a large amount of taxes, county levies, parish assessments, fines and. forfeitures were intrusted to him for collection and accountability. He then charges that since the termination of his office, he had endeavored to bring the said deputy to a settlement of "these multifarious and intricate matters of account, but had been unable to accomplish any such settlement.'' He further charged that there was due from said deputy to him, in the first year of the sheriffalty, upwards of two thousand dollars, and in the last year about three thousand dollars, which, with the interest, made considerably upwards of seven thousand dollars due plaintiff; that it was obvious that the matters involved, in the settlement, between plaintiff and said deputy," involve matters of detail of the most multifarious and intricate character, such as it would be impracticable for a jury to act upon in the ordinary common law trial without incurring the risk of doing the grossest injustice to plaintiff and said deputy, that it was obvious in the progress of the investigation it would be necessary to look carefully into the books of the said deputy, and appeal to his conscience for information necessary to throw light upon these accounts." The bill then closes with the prayer that the deputy.and surviving sureties, and the administrator of the estate of Solomon Billmyer, deceased, be made parties defendant, &c, and "particularly that the said John T. Billmyer may be required on oath to give a fair and full detailed account of his actings and doings as deputy sheriff during the two years aforesaid so far as the collections, receipts and disbursements of the moneys intrusted to his agency are concerned;" that he be required to produce all his books, accounts and vouchers, and show what money he has received and how the same has been applied; that plaintiff have decree 'against said John T. Billmyer and his sureties for the amount due him, and that a master commissioner state and settle the accounts between plaintiff and defendant. The said bond was made an exhibit with the bill. The defendants demurred to the bill, and the court properly sustained the demurrer, and leave was given the plaintiff' to file an amended bill. That the bill was demurrable, the plaintiff seemed convinced of, as the record says," by consent of plaintiff the demurrer is sustained."' The plaintiff tiled his amended bill March. 29th, 1869, in which he alleges that he intended to accompany his original bill with an account setting forth in detail the breaches by the said John T. Billmyer, of the condition of his bond, which was omitted accidentally as an exhibit, and which omission he now supplied. He then charged, in the amended bill, that said Billmyer did not faithfully account for the taxes imposed by law in the district committed to his charge for the year 1859, nor collect the county levies and parish assessments, and account and pay the same in such manner as the law directs; nor collect and account for all fines, forfeitures and amercements accruing to the Commonwealth in said district; nor account for the officers' fees; nor collect and account for the executions placed in his hands, but wholly neglected and refused so to do; whereby plaintiff was compelled to advance and pay for him for official breach of trust, on account of the revenue licenses, taxes, county claims, &c, the sum of two thousand and sixty dollars and ninety cents for the year 1859. That the said defendant did not faithfully account for the taxes in his district for the year 1860, but failed to account for and pay the same to the plaintiff or to the Commonwealth of Virginia; whereby the plaintiff was compelled to advance and pay the same, and did pay into the treasury of the State, for taxes which should have been accounted in said district, the sum of eleven thousand eight hundred and ninety-five dollars and twenty-nine cents. That said defendant had failed to account for the license tax for that year; for muster fines which he should have collected and accounted for; for road orders which he has failed to account for, and that the plaintiff has thus been compelled to advance to the State and other creditors entitled to receive said moneys, the sum of three thousand and thirty-eight dollars and seventy-seven cents for the year 1860;, that he filed his account so far as he had ascertained the liabilities and been compelled to pay them, exhibiting the default of said deputy, together with the credits to which deputy was entitled so far as plaintiff knew them. Plaintiff then avers " that he is threatened with notices for sundry other pecuniary liabilities, growing out of the default, malfeasance and breach of trust of said deputy, in the settlement of administration accounts placed in his hands, which makes it a matter of the highest importance to your orator that there shall be a fair, full, and complete and final settlement between your orator and his deputy of the trust and agency in which he was employed, that orator may know the full extent and measure of his liability for his official acts, and to make the necessary preparation to meet them;" that plaintiff had sought in all fair and friendly way to obtain all necessary informa- tion from said Billmyer, and to have settlement with him of the important and responsible trust which was confided to him, but he refused to give plaintiff this information, or to make with him the settlement which justice and equity requires. Then follows the prayer for parties, and that said Billmyer be required to render a fair, full and detailed account of the trust and agency confided to him as deputy, and that decree be rendered against...