Manion v. Fahy.

• Citation: 11 W.Va. 482
• Parties: Manion v. Fahy.
• Decision Date: 01 November 1877
• Court: Supreme Court of West Virginia

11 W.Va. 482

Manion

v.Fahy.

Supreme Court of Appeals of West Virginia.

Decided November 1, 1877,

1. A clerical error in entering a consent decree may be corrected by the original draft of the decree, furnished the clerk by the court, on motion at any time, under the provisions of section 5 of chapter 134 of the Code.

2. A consent decree, except where such clerical error has occurred, can never be modified or altered without the consent of parties, not even during the term at which it was entered.

3. A consent decree may be set aside during the term at which i was entered, on motion, or by the court without any motion.

4. After the termination of the term at which a consent decree was entered, it can never be set aside, except by consent, by any proceedings in the cause, though it had been entered by mistake, or by the fraud of one of the parties.

5. A consent decree may be annulled when it was procured by fraud or was entered, by mistake of one or both of the parties, differently from what it should have been on an original bill filed for the purpose.

6. An original bill is necessary and proper to annul such a consent decree, whether it be an interlocutory or final decree.

7. In such, a suit if the court annuls the decree, it should proceed further, and in all respects restore the parties to the situation, they were in, when such consent decree was entered.

8. After such consent decree has been thus annulled, the court should, in the suit in which it was entered, proceed to decide it upon its merits, as if no such consent decree had been entered.

Appeal and supersedeas, granted upon the petition of William Manion, from and to two decrees of the municipal court of Wheeling, rendered, one on the 4th day of April 1876, and the other at the May term 1876 of said court, in a cause in chancery, then in said court pending, wherein said Man ion was plaintiff, and Thomas Fahy was defendant.

The supersedeas so allowed was directed to extend to the judgment, rendered by said court on a forthcoming bond, executed for the delivery of property, levied upon by virtue of an execution, issued upon said decree of April 4, 1876,

Green, President, who delivered the opinion of the Court, furnishes the following statement of the case:

The plaintiff, Wm. Manion, in January 1874, filed a bill in chancery, in the municipal court of Wheeling, to settle up a mercantile partnership between him and the defendant, Thomas Fahy. The bill alleged that the partnership was dissolved by mutual consent on June 16, 1873; that all the assets of the firm were left in the hands of the defendant, who continued in the mercantile business with the understanding, that he would collect the debts due to the firm, and after paying all the debts of the firm, pay over to the plaintiff every Saturday half of the collections made during the week: that all of the debts had been thus paid off, but the defendant refused and neglected to pay over to the plaintiff his share of the profits. And he prayed a settlement of the partnership accounts, the appointment of a receiver, a decree against Fahy for the amount due to the plaintiff, and for general relief. On February 24, 1874 an order was made referring the cause to a commissioner to settle the partnership accounts; and after this decree the defendant, Fahy, filed his answer, in which, admitting the partnership and its dissolution as stated in the bill, and that the books were left with him to collect the debts due the firm, and dispose of them as stated in the bill, he denies, that there was anything due at that time to the plaintiff, and alleges that he and the plaintiff appointed certain persons as arbitrators to settle their part- nership accounts, who rendered their award, as follows: "Thomas Fahy was to pay to William Manion $1,000.00 cash, and to give to said Manion his note for $644.78, payable in three months; also was to give him (the said plaintiff) his note for another like sum of $644.78, with the understanding, however, that it should be deposited with one W. C. Handlan, and was not to be payable until after the decision and determination of a certain prosecution in the United States district court of West Virginia, in which said partnership, Thos. Fahy & Co., were prosecuted for selling liquor without license, and the said William Manion should have paid one-half of whatever fine the court should impose, and one-half the costs imposed by the prosecution, and one-half of whatever other costs might be incurred in making defense against said charge; and that this defendant was to pay to said Manion one-half of all collections, that were made from the accounts standing on the books on the 14th day of August 1873, supposed to aggregate about the sum of $1,953.33; payments to be made every Saturday night of one-half of the accounts collected during the preceding week.

The defendant avers that he has performed this award in all respects, paying the money required, and offering the bond to W. C. Handlan. The defendant then alleges," that the arbitrators, in awarding to the said Manion one-half of the amount collected on the accounts, that remained uncollected up to August 14, 1873, made an obvious mistake in this, that the date should have been June 14, 1873, this being the date of the dissolution of the partnership. He expresses his willingness to account with the plaintiff for the uncollected credits of the partnership, and alleges that the plaintiff has no excuse for bringing this suit.

On June 28, 1875 the cause was heard on the bill, answer and general replication thereto, the order of reference was set aside, and the court ordered that an issue be tried by jury, whether the defendant is indebted to the plaintiff in any sum whatever, and if so, to what amount; and further, to ascertain by their verdict what" accounts of the firm of Thomas Fahy & Co. remained uncollected in the hands of either party."

On August 26, 1875 a consent decree was entered, setting aside all the orders made in the cause, and adjudging that a negotiable note for $679.41 should be executed by Thomas Fahy to William Manion, payable October 1, 1875, to be held as an escrow until after the determination of the prosecution named in the answer; and then, in the event that this prosecution is decided against Thomas Fahy, one-half of the fine and costs of prosecution should be paid out of the proceeds of this note, and the other half by the defendant; that Peter W. Bosley be appointed receiver to collect the credits of the firm, and that he should further report to the court all collections of the assets of the firm, which the defendant had made since the dissolution of the firm, his report to be final; and that one-half of said collections shall be at once paid by the defendant to the plaintiff, with interest from the time of their collection; and that plaintiff recover of the defendant the costs of this suit to that date; and all other questions were reserved by said decree.

On November 24 1875 Peter Bosley made his report, showing that since the disolution of the firm, June 13, 1873, Thomas Fahy had collected $1,311.90, and William Manion $28.36; also, that it was said that certain judgments amounting to $71.75 in addition had been paid to Thomas Fahy. His report also shows that he had collected $138.63, and had expended $15.35, leaving a balance in his hands of $123.35. Upon this report, to which there was no exception, being returned, the court on December 4 1873 approved the same, and adjudged that the defendant, Thomas Fahy, pay to the complainant, William Manion, $627.60, the half of the amount reported to have been collected by him since the dissolution of the firm June 14, 1873, with interest on the same from November 24, 1875 till paid, and that said Man ion might have execution therefor, and that the special receiver pay into the hands of the general receiver of the court the funds in his hands. On February 25, 1876 Thomas Fahy filed a petition for the re-hearing of the decree of August 26, 1873, and December 4, 1875, in which he states that a mistake was made in the first of said decrees, in so far as it decrees that one-half of the collections made by Thomas Fahy since the dissolution of the firm, June 14, 1873, should be paid by him to William Manion. It should have been one-half of the collections made since the award of the arbitrators, August 14 1873. That this was what he intended to consent to, and supposed till very recently that he had consented to. His design was to have carried out said award, so far as the same had not been performed. He files with his petition a copy of the award. That this mistake occurred through a mistake of his counsel. When his answer was filed, his counsel having drawn it from a previous statement made by him, which he misapprehended, his counsel made a mistake and inserted therein, that there was a mistake in the award awarding to Manion one-half of the amount collected by him (Fahy) after August 14, 1873," and that the date should have been June 14, 1873, when in point of fact, there was no mistake in the award. This mistake was carried into the consent decree of August 26, 1875, That as the award of said arbitrators, filed with the petition, shows the collections made by him (Fahy) between June 14, 1873 and August 14, 1873, were $1,000.00, for which he accounted to Manion, and that thus, by said consent decree, he is required to pay to Manion his half of this $1,000.00 a second time, and that accordingly the decree against him of December 4, 1875 was $500.00 more than was justly due. He states that, execution having issued on the decree, the city sergeant, Edward M. Davis enforced it by selling property of the petitioner Fahy. The amount thus sold being $816.64, of which $185.60 was costs and expenses, and $630,74 amount improperly decreed to Manion. At this sale Manion bought $578.81 worth of property, which the petition alleges he had not paid the said city sergeant. The...