Lough v. Taylor

• Decision Date: 16 September 1924
• Docket Number: C. C. 285.
• Citation: 124 S.E. 585,97 W.Va. 180
• Parties: LOUGH v. TAYLOR ET AL.
• Court: West Virginia Supreme Court

124 S.E. 585

97 W.Va. 180

LOUGH v. TAYLOR ET AL.

C. C. No. 285.

Supreme Court of Appeals of West Virginia.

September 16, 1924

Submitted September 3, 1924.

Syllabus by the Court.

Where in a suit brought by a judgment creditor of defendant to subject lands of defendant to sale to satisfy the judgment rendered by a court having jurisdiction of the parties and the subject-matter, the defense is that the judgment was procured by fraud, such defense is an attempt to impeach the judgment collaterally, and plaintiff's motion to strike from the record the answer setting up such defense is properly sustained.

Case Certified from Circuit Court, Wetzel County.

Suit by Isaac H. Lough against Jane Taylor and others. Ruling sustaining motion to strike the answer for insufficiency was certified for review. Affirmed.

E. H Yost, of New Martinsville, for defendants.

MEREDITH P.

Plaintiff filed his bill on his own behalf, and on behalf of all other lien creditors of defendants, by which he sought to subject to sale defendants' interests in certain real estate, to satisfy plaintiff's claim upon a judgment rendered in his favor by a justice of the peace.

The bill recites the filing of Exhibit A, a transcript of the justice's record of the judgment; Exhibit B, an execution issued upon said judgment and returned, "No property found and execution returned not satisfied"; and Exhibits C and D, title papers under which defendants hold the interests in land referred to. Defendants demurred to and answered the bill. Plaintiff moved to strike the answer from the record on the ground of insufficiency. The circuit court sustained plaintiff's motion, and of its own motion certified its ruling here for review.

The transcript of the justice's record shows that process was duly issued and served upon defendants; that the parties appeared on the day set for trial; and that plaintiff and defendants having agreed upon $175 as a proper amount judgment for that sum was entered against defendants in favor of plaintiff on December 12, 1922. The language of the transcript affecting the agreement of the parties as to the amount of the judgment reads:

"The defendants propose or compromise and the plaintiff makes a proposal to take $175, provided that payment is made at this time. The defendants accept the proposition, but ask that the time of payment be extended to the 31st day of December, 1922, which condition is finally allowed by the plaintiff, and each party to pay one-half the cost which was paid as agreed."

The complaint of defendants' answer is that the $175 was approximately the balance of the contract price agreed upon for the erection of a house by plaintiff for defendants, said contract being an oral one entered into in August, 1921; that at the hearing of the case before the justice on December 12 1922, they were assured by plaintiff that he would not take judgment against them, nor make any attempt to collect the $175 until he had fully completed the construction contract that the...