Parsons v. Parsons
| Decision Date | 19 October 1926 |
| Docket Number | 5696. |
| Citation | 135 S.E. 228,102 W.Va. 394 |
| Parties | PARSONS v. PARSONS. |
| Court | West Virginia Supreme Court |
Submitted October 12, 1926.
Syllabus by the Court.
To entitle a party to relief in equity against a judgment of a court of law, he must show fraud, accident, mistake surprise, or some adventitious circumstance beyond his control.
The fraud which will justify relief in equity against a judgment of a court of law must be in the procurement of the judgment and such as is extrinsic to the matters involved in the issues on the trial; fraud in the cause of action must be interposed as a defense to the action.
Appeal from Circuit Court, Jackson County.
Suit by E. W. Parsons against K. B. Parsons for an injunction against enforcing a judgment at law. From a decree for plaintiff defendant appeals. Decree reversed, and bill dismissed.
T. J. Sayre and K. K. Hyre, both of Ripley, for appellant.
Lewis H. Miller and W. F. Boggess, both of Ripley, for appellee.
Defendant sued plaintiff before a justice of the peace in Jackson County, and obtained a judgment for the sum of $206.45. Plaintiff not being found in the state at the time, service of process was had by delivery of a copy of the summons to his wife at his usual place of abode, as provided by section 32, chapter 50 of the Code. The judgment was rendered April 3, 1923; and plaintiff claims that he never knew of the suit until he returned home from the state of Ohio, about April 27th.
Plaintiff immediately instituted the present suit, alleging that he was a non-resident of the state at the time the summons was delivered to his wife, and that the cause of defendant's action against him arose out of a partnership between the parties, which defense he was prevented from interposing on account of ignorance that the action had been brought, "which he could and would have made thereto had he not been prevented from doing so by the action of the said K. B. Parsons, whereby this plaintiff was deceived and lulled into false security without any fault, laches or neglect on his own part." The bill further alleges that the partnership affairs of the parties should be settled and adjusted in a court of equity; that defendant is indebted to plaintiff in the sum of $500.00 or more; and that defendant should not be permitted to sue in an action at law and obtain a judgment by reason of anything arising out of the partnership affairs.
The prayer of the bill is that "defendant, his agents, attorneys at law, and all others, be enjoined and restrained from proceeding to enforce said judgment in any way, that especially the said constable of the said County of Jackson be enjoined and restrained from levying the said execution now in his hands, that proper process issue and proper orders be made, that said judgment be set aside, that the partnership accounts of plaintiff and defendant be settled, that all such other, further and general relief may be afforded this plaintiff as in the premises may be just and right."
By his answer defendant admits that a partnership had existed between the parties, but alleges that in February 1923, such partnership was voluntarily dissolved, and a settlement made, by which plaintiff agreed to pay him the sum of $256.45, of which $50.00 was paid in cash at the time.
The circuit court, on the pleadings and evidence, found that a partnership existed between the parties at the time suit was brought and judgment entered in the justice's court, and that said judgment was void and of no effect, and "that from the evidence taken on behalf of the plaintiff and defendant the court is unable to tell whether either owes the other anything, but is of opinion that this cause should be referred to a commissioner to take and state an account of the partnership affairs existing between the plaintiff and defendant, but the defendant K. B. Parsons desiring to rely upon the voluntary settlement of the partnership affairs as set forth in his said answer does not desire said reference and moves the court to enter a final decree herein so that he may appeal therefrom to which the plaintiff does not object"; it was therefore adjudged, ordered and decreed that the partnership theretofore existing between the parties be dissolved, and that neither party was entitled to recover anything against the other by reason of their partnership affairs; that the plaintiff was entitled to the relief prayed for in his bill; that the said judgment against him be enjoined and held for naught; and that the defendant execute a release thereof. And the cause was stricken from the docket.
On demurrer plaintiff's bill shows a good case for relief in equity. He attacks the judgment of the justice on the ground of lack of jurisdiction, alleging that the same is a cloud upon the title to his real property in Roane County, and sets out facts entitling him to an accounting of the partnership affairs, and prays for a settlement of the partnership accounts.
The circuit court found against plaintiff on the question of jurisdiction of the justice; and we think the evidence justifies this finding. The transcript of the justice's docket shows no defect in the trial before him. The summons in that suit is in the form prescribed by the statute, and the return of the constable serving the same conforms to all the requirements of section 32, chapter 50 of the Code, providing for substituted service of process.
According to the plaintiff's evidence, he learned of the judgment too late to take an appeal to the circuit court as a matter of right, or to have the default judgment set aside on motion; but he did not apply to the circuit court for an appeal for good cause shown within the ninety days provided by law. Then, to entitle him to relief in equity he must show fraud, accident, mistake, surprise or some adventitious circumstance beyond his control. See the numerous cases cited and digested in 8 Enc. Dig. Va. & W.Va. Rep. 537, 538, and 4 Id. Cum. Sup. 61, 62; 3 Wait on Actions & Defenses, 729; 2 Story's Eq. Jur. (14th Ed.) § 1208. This proposition is too well settled to need further mention.
The mere fact that plai...
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