McMullen v. Lewis

• Decision Date: 09 April 1929
• Docket Number: No. 2779.,2779.
• Citation: 32 F.2d 481
• Parties: McMULLEN v. LEWIS et al.
• Court: U.S. Court of Appeals — Fourth Circuit

32 F.2d 481 (1929)

McMULLEN v. LEWIS et al.

No. 2779.

Circuit Court of Appeals, Fourth Circuit.

April 9, 1929.

Henry Simms, of Huntington, W. Va., and Hite H. Huffaker, of Louisville, Ky. (William Bullitt Dixon, of Louisville, Ky., Goshorn & Smith, of Charleston, W. Va., Simms & Staker, of Huntington, W. Va., and Fred W. Goshorn and Claude L. Smith, both of Charleston, W. Va., on the brief), for appellant.

Robert S. Spilman and George E. Price, both of Charleston, W. Va. (Hawthorne D. Battle and Price, Smith & Spilman, all of Charleston, W. Va., on the brief), for appellees.

Before WADDILL and PARKER, Circuit Judges, and BAKER, District Judge.

WADDILL, Circuit Judge.

This is an appeal from a decree of the United States District Court for the Southern District of West Virginia, dismissing appellant's original and amended bills of complaint filed in that court.

On August 11, 1928, appellant, Nelson V. McMullen, filed his bill in the federal District Court at Charleston against a number of parties, including two corporations, described as "the heirs at law and successors in title to John D. Lewis, deceased," who was a defendant in certain ejectment actions and plaintiff in one of said actions, and others described as legatees and successors in title of John P. Hale, deceased, who was one of the plaintiffs in three of said ejectment actions. The relief sought by the bill was the setting aside of the awards of three arbitrators, returned on August 24, 1876, in each of 14 actions of ejectment, and the judgments rendered upon the awards on December 20, 1877, in 11 of said actions, as incident to the recovery of certain lands to which complainant asserts title.

Before appearance by any of the defendants, complainant filed his first amended bill, substituting C. R. Brown, administrator of the estate of Mrs. Helen W. Scott, deceased, one of the alleged legatees of John P. Hale, and certain other persons supposed to be her heirs at law, for the defendant Helen W. Scott.

The defendants W. D. Lewis and others, on August 29, 1927, moved to dismiss complainant's amended bill, upon the ground that it appeared upon the face of the bill and exhibits that complainant was barred by the laches of himself and his father from disturbing said awards and judgments; that upon the refusal of the Supreme Court of Appeals of West Virginia to correct the alleged errors contained in said awards and judgments the same had become res adjudicata; that the mistakes and errors of the arbitrators could not be reviewed by complainant in this suit after the lapse of half a century; and that there was no averment in the bill that said defendants, or any one under whom they claimed, were guilty of fraud.

On September 17, 1927, before said motion to dismiss was heard, complainant filed his second amended bill, in which he averred, among other things, that the fraud complained of in his original bill consisted of a conspiracy between John P. Hale, coplaintiff with his father, J. Lewis McMullen, and with his grandfather, W. A. McMullen, in several of said actions, and Wm. H. Hogeman, counsel for said Hale, McMullen, and others, to conceal certain evidence from the arbitrators and fraudulently present other evidence to them. In his second amended bill complainant also sought to show that he had not been guilty of laches in asserting his claim. Elaborate exhibits were filed with the bill in support of the averments of fraud and mistake.

Defendants moved to dismiss the second amended bill upon the grounds stated in their former motion, and upon the further ground that the charges of fraud, conspiracy, concealment of relevant evidence, and introduction of incompetent testimony were disproved by the exhibits filed with said bills, upon which such charges were based. The motion to dismiss was fully argued before the trial court, and on February 8, 1928, the trial judge rendered a written opinion dismissing the bills.

After the opinion of the trial judge had been filed, complainant lodged in the clerk's office of the District Court his third amended bill of complainant, and on March 22, 1928, the cause came on to be again heard upon complainant's motion for leave to file said third amended bill, which was granted. Thereupon defendants moved to dismiss the third amended bill, and renewed their motions to dismiss complainant's original bill, and the first and second amended bills. On March 22, 1928, the trial court entered its final decree, sustaining said motions to dismiss, from which this appeal is taken.

The learned Circuit Judge, sitting in the District Court, in his opinion filed as a part of the record in this case, in briefly stating the complainant's case, the testimony to support the same, and his conclusions upon the facts and law covering the cause, said as follows:

"The bill alleges * * * that complainant's father, J. Lewis McMullen, who was a party to said suits, died September 10, 1918, and was at the time of his death a resident of the state of Kentucky; that one J. P. Hale and one J. D. Lewis, the said Lewis being a party to the suits in question, fraudulently conspired to conceal from said arbitrators certain material evidence, and to produce to said arbitrators certain incompetent and immaterial evidence, in order to affect in an improper way the arbitration in question, and that, in order to carry out said conspiracy, Hale, who was a co-owner with the said J. Lewis McMullen, dismissed the law firm of Swann & Lee, who had for many years represented the said J. Lewis McMullen, and employed one William H. Hogeman to represent the said J. Lewis McMullen and said John P. Hale; that the employment of said Hogeman was fraudulent and corrupt, and was for the purpose of securing the said Hogeman to betray the interest of his client, the said J. Lewis McMullen; that Hogeman had formerly represented John D. Lewis in suits concerning the title to some of the land in controversy, and that the said Hogeman joined with the said Hale and Lewis in the fraudulent conspiracy to secure wrongful awards from said arbitrators in favor of said John D. Lewis; that Hogeman, at the time he was acting as attorney in said arbitration, was secretary and director of a bridge company, of which C. C. Lewis, son of said John D. Lewis, was president, and that the said Hogeman was related by marriage to the said John D. Lewis.

"The bill further alleges that certain decisions of the Supreme Court of Appeals of West Virginia, and proceedings had in said court, in cases decided at the January term thereof in 1872, were fraudulently concealed and withheld from said arbitrators; that the awards of said arbitrators were based upon mistakes as to surveys made, and proceedings had in other suits and proceedings at or about the same time, and upon various mistakes in the evidence produced before said arbitrators; that after the death of J. Lewis McMullen, in the year 1918, the complainant began an investigation with regard to certain land in West Virginia, that had been owned by his father; that complainant was advised, at a time not set out in the bill, by a lawyer whose name is not given, that it would be advisable to look into the matter; that he immediately began to examine the records with respect thereto, and that complainant discovered, `more or less by accident,' in a collateral suit in the office of the clerk of the District Court of the United States, at Charleston, many papers bearing on the subject, but that it was not until the month of July, 1927, that he found out what his rights were, and was able to interest counsel in the prosecution of his claim, although he had prior thereto consulted numerous attorneys about the matter.

"The complainant prays that the said arbitration be declared null and void, and of no force or effect as to the complainant.

"The motion to dismiss is based upon the ground that the allegations of fraudulent conspiracy are insufficient and furnish no ground for setting aside the award complained of, and that the allegations of the bill are not supported by the exhibits filed therewith; that it does not appear what material and pertinent evidence was concealed from the arbitrators, or in what way the arbitrators were improperly influenced by the said Hogeman; that it does not appear in what way the awards of the arbitrators would have been different, if the proceedings in certain cases referred to in complainant's bill had been brought to the attention of the arbitrators; that it appears from an exhibit filed with the bill that the case was fully presented before the arbitrators in a proper way, and that the evidence taken before the arbitrators was not returned with and made a part of their award, and that, therefore, it is impossible now to determine whether any particular evidence was or was not introduced before the arbitrators; that it also appears from exhibits filed with the bill that one J. H. Ferguson was associated with Hogeman in representing the said J. Lewis McMullen in said arbitration, and that there are no allegations in the bill charging Ferguson with being a party to the conspiracy; and for the final reason that it is apparent from the bill and exhibits that the said J. Lewis McMullen and the complainant, Nelson V. McMullen, were plainly guilty of laches in resting upon their rights for the period of more than 50 years that elapsed between the award of the arbitrators in 1876, and the bringing of this suit in the year 1927. * * *

"A study of the bill and exhibits leads to the opinion that it is impossible to reach the conclusion that the case was not properly handled before the arbitrators and in the subsequent proceedings before the circuit court of Kanawha County, which proceedings the Supreme Court of Appeals of West Virginia refused to review. * * * It is apparent from the bill and exhibits that all proceedings had before the arbitration were not certified by the arbitrators with their awards when the...