Pethtel v. McCullough
| Citation | 39 S.E. 199,49 W.Va. 520 |
| Parties | PETHTEL v. McCULLOUGH et al. |
| Decision Date | 13 June 1901 |
| Court | Supreme Court of West Virginia |
Syllabus by the Court.
1. An order dismissing a case agreed is a bar to another suit on the same cause of action.
2. A suit by one creditor to enforce a debt against land of his debtor fraudulently conveyed. Another creditor files a petition in the cause setting up another distinct debt against the debtor, and to subject the same land. The second creditor is not a party to the first suit, nor are his rights mentioned therein. An order under the title of the first suit dismissing the case agreed, on the motion of the plaintiff does not dismiss the petition of the other creditor, or bar its further prosecution.
3. Laches in prosecuting a suit not operating to bar it.
4. Petition: When dismissal of main suit carries with it a petition.
5. Cross bill: When dismissal of original bill carries with it a cross bill.
6. A pleading bearing one name will often be treated and acted upon as one under another name, and operate to perform its functions, in the courts of equity, if such pleading contains proper matter to answer such purpose.
Appeal from circuit court, Pleasants county; J. W. Vandervort Special Judge.
Suit by Isaac Pethtel against James W. Williamson, one McCullough and others. Decree for plaintiff, and defendants Williamson and wife appeal. Affirmed.
Hall & Hall, for appellants.
John F Barron, for appellee.
BRANNON P.
Isaac Pethtel brought a chancery suit in the circuit court of Pleasants County against James W. Williamson and others to enforce a judgment in his favor against Williamson against land which Williamson had conveyed to Brooks, and Brooks had conveyed to Williamson's wife, and to set aside as fraudulent the conveyances of Williamson to Brooks and of Brooks to Williamson's wife. C. P. Smith appeared and filed a petition in the case, setting up a debt on which he had recovered a judgment against Williamson, and seeking to set aside the same conveyances as fraudulent, and to subject the same land to Smith's debt. The petition was allowed to be filed, and Smith was ordered to be made a party defendant in the cause. Smith was not a party to Pethtel's cause; nor was he, or his debt or rights, mentioned in that cause. Afterwards this order was made in the cause: Afterwards a special judge was elected to hear the case; Williamson objecting to his election, and claiming that there was no pending case for any further action. No other party appeared. Williamson moved to dismiss the cause, but the court refused to dismiss. He demurred to the petition, and his demurrer was overruled. He made no further appearance. The court made an order dismissing the case as to Pethtel on the ground that his rights had been adjudicated by the said order of dismissal, but refusing to dismiss the petition of Smith and directing the case thereafter to proceed in Smith's name as plaintiff upon the matters set up in his petition; and after notice to the parties that the suit would go on upon Smith's petition, and the parties not appearing thereafter, upon the petition taken for confessed a decree was entered for Smith's debt, holding said conveyances void as to it, and subjecting the land to its payment. Williamson and wife appeal. A question might be made as to Mrs. Williamson's right to appeal, but we shall decide the case on the merits.
What is the effect of an order of "dismissed agreed"? It is a bar to another suit upon the same cause, on the principle of a compromise decree on the merits in equity, or a retraxit at common law, either of which is a bar to another suit. Hoover v. Mitchell, 25 Grat. 387, holds it prima facie final, at least; but Wohlford v. Compton, 79 Va. 333, holds it final as to all matters which were actually, or might have been, litigated in the suit. In Siron v. Ruleman's Ex'r, 32 Grat. 223, it is so declared. In Jarboe v. Smith, 10 B. Mon. 257, 52 Am.Dec. 541, it is held a bar "between all parties on the original cause of action, unless there is an express stipulation that another suit may be brought." Such is the great weight of authority. 1 Freem. Judgm. § 262; 1 Herm. Estop. 296; 1 Van Fleet, Former Adj. § 33. One decision of the United States supreme court denies this position. Haldeman v. U. S., 91 U.S. 584, 23 L.Ed. 433. But U.S. v. Parker, 120 U.S. 89, 7 S.Ct. 454, 30 L.Ed. 601, holds the doctrine stated. So, 2 Black, Judgm. § 706, says that it is settled law. The point is not decided in Stockton v. Copeland, 30 W.Va. 674, 5 S.E. 143. The words "dismissed agreed" are very strong. Though the order is abbreviated, so far as it goes it imports compromise and adjustment, and a decree ending the case on that ground. A compromise decree is final. Lockwood v. Holliday, 16 W.Va. 651; U.S. v. Parker, supra. A dismissal agreed is equivalent to a retraxit at common law, which is an "open, voluntary renunciation of his claim in court, and by this he forever loses his action." 3 Bl. Comm. 296. In the words of the court in Hoover v. Mitchell, cited, this short expression is "a declaration of record, sanctioned by the judgment of the court, that the cause of action has been adjusted by the parties themselves in their own way, and that the suit is dismissed agreed." But in this case the order is longer, clearer, and expressly certifies an adjustment by the parties.
While such a dismissal bars the demand set up in the bill of Pethtel, does it also bar relief to Smith upon the judgment set up in his petition? That petition sets up the pendency of Pethtel's suit and its purposes, and asks that Smith be made a party thereto, and that relief be given him in it; and by order of the court in the cause the petition was allowed to be filed in it, and Smith was made a party defendant to the cause, and his petition was sent to rules to issue process on it and mature it for hearing, which was done. Afterwards this dismissal was entered under the name and title of "Isaac Pethtel v. J. W. Williamson and Others." It is contended that this dismissal carried the Smith petition out of court, as well as Pethtel's bill and, further, that it bars not only Pethtel's cause of suit, but also that of Smith. It neither carried the petition out of court, nor does it bar Smith's cause of suit. As to whether it extinguished Smith's petition, we must not let the facts that it was filed in Pethtel's suit, and that Smith became a party to that suit, carry us too far. We must look at substance. It has been a practice in the Virginias to use petitions for purposes and to an extent which will not be found to be sanctioned by books on general equity practice. Viewed as petitions, strictly, they cannot perform the office of bills. Petitions are properly used only to get orders in the case on grounds presented in and arising out of its pleadings, not to bring in new causes of suit. 16 Enc. Pl. & Prac. 501. I doubt whether an order of court making a stranger a party to a bill, not naming him or his right, makes him a party to that bill or in the cause. I think it does not. The bill must be amended to do so. Shinn v. Board, 39 W.Va. 497, 20 S.E. 604. But when, as in this case, one creditor files a bill to enforce a lien on land, and another lienor comes into the case because he has a lien on the same land, and does so by a pleading which he calls a "petition," we need not limit that pleading technically to the function of a petition, but treat it as a bill. This practice of filing petitions was once more frequent in this state than now, under the statute providing that one lienor may sue for all, and that, whether he does so or not, others may come in and enjoy the benefit of the suit for their relief by presenting their claim before the commissioner taking an account of liens. Bart. Ch. Prac. 363. And I think a petition could be presented in the suit, presenting a lien. In such case the petition should have form and parties as a bill. It would be a bill. It could not be decreed upon unless it has parties. But without that trouble the lien may be presented before a commissioner; for where the bill is filed by one lienor for all, or, whether so filed or not, there is a reference to convene liens, section 7 of chapter 139 of the Code makes the proceeding one for the benefit of all lienors. If in such a case the dismissal of the main suit would carry with it the petition, such result would not follow in this case, because this is not that character of suit, but a suit to set aside a fraudulent conveyance, in which our cases hold that other lienors need not and ought not to be parties. Hogg, Eq. 598, fully discusses the subject. Though Smith's pleading is called a "petition,"...
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