Plaintiff v. (*Absent

Decision Date04 May 1878
Citation13 W.Va. 230
PartiesHenry et al. v. Davis.
CourtWest Virginia Supreme Court

In a trial of an issue out of chancery it is the duty of the court presiding at the trial of such issue, to sign bills 'of exceptions to its opinion, as in trials of law-issues before a jury.

A.Fudge, by mandamus may be compelled by the Supreme Court of Appeals to sign a bill of exceptions to his opinion in the trial of an issue out of chancery, where such bill of exceptions states fairly the truth of the case involved therein.

Where an issue out of chancery has been tried in the court below, and verdict rendered, which is satisfactory to the Court; and a decree rendered, based on such verdict, and, pending the trial of the issue, the defendant therein excepts to an opinion of the court, refusing to permit evidence to be introduced to the jury by such defendant, and the judge refuses to sign a bill of exceptions to such opinion, and the defendant appeals from the decree to the Supreme Court of Appeals, and does not apply to that court for a mandamus, to compel the judge to sign a bill of exceptions, but proceeds to have his cause heard and determined by the Supreme Court of Appeals on the record, without such bill of exceptions, and the decree is affirmed; the defendant has waived the benefit of such exceptions, and cannot afterwards be heard, to complain of the action of the judge in refusing to sign such bill of exceptions.

A fact, which has been directly tried and decided in a court of competent jurisdiction, cannot be controverted again between the same parties, in the same or any other court. But, to OF west VIRGINIA.

make it res judicata, it must have been directly, and not collaterally, in issue in the former suit.

5. The clause in the Constitution, requiring the Supreme Court of Appeals to "decide every point, fairly arising upon the record, and give its reasons therefor in writing" is directory, and does not affect the common law doctrine of res judicata.

6. The decree of the Supreme Court of Appeals upon a question,

decided by the court below, is final, and irreversible; and upon a second appeal in the cause, the quest on, decided upon the first appeal, cannot be reviewed. In such case the conclusiveness of the decree of the Supreme Court of Appeals is the same, whether the first appeal was froma final, or interlocutory decree, of the court below.

7. When the Supreme Court of Appeals makes a decree, and sends

the cause back for further proceedings, there cannot be a bill of review to correct the decree of such court for error apparent.

8. When the Supreme Court of Appeals has executed its power,

in a cause before it, and its final decree or judgment requires some further act to be done, it cannot issue an execution, but will send its decree or judgment to the court below to be executed. Whatever was before the court, and disposed of, is considered finally settled. The inferior court is bound by the decree or judgment, as the law of the case, and must carry it into execution. The court can examine it for no other purpose than execution, or give any order, or further, relief; or review it on any matter, decided on appeal, for error apparent.

9. By error apparent is meant, such as appears upon the face of the

proceedings; and that includes all, that was included in the issue; but a bill of review, or supplemental bill in the nature of a bill of review, will lie for after-discovered evidence, subject to the rules applicable thereto.

Appeal from a decree of the circuit court of Wood county, rendered on the 7th day of August, 1876, in a a cause in said court then pending, in which Eugene Henry and others were plaintiffs and Henry G. Davis was defendant, granted on petition of said Davis.

Hon. James Monroe Jackson, judge of the fifth judicial circuit, rendered the decree complained of. supreme court op appeals

Johnson, Judge, furnishes the following statement of 232

the case:

After this case had been tried before the appellate court upon appeals from decrees of the circuit court of Doddridge county, upon the first of which the decree of the court below was reversed, and an issue out of chancery directed, and the cause remanded for the trial of the issue, and further proceedings to be had; and upon the trial of the issue and verdict found against Davis, which was satisfactory to the court below, and upon which a decree was entered against Davis, from which he appealed; and upon the second appeal, the decree of the circuit court was affirmed. The defendant on the 15th day of July, 1874, filed in said cause, in the circuit court of Doddridge county, what he called a "supplemental bill in the nature of a bill of review," which bill is in substance as follows: "That in June, 1866, one Eugene Henry commenced a chancery suit in your honor's court against your orators, Benjamin F. Martin, Benjamin Wilson and T. R. Knight, seeking to enforce by decree the payment of the purchase money, claimed by him to be due from your orator to him and the said Wilson, for the purchase of parcels of land in said county of Doddridge, one of three hundred and thirteen acres, the other of fourteen acres, in accordance with the terms of the sale thereof, set forth in a written contract, made between the said Henry and your orator, one bearing date the 9th of March, 1865, and the other bearing date the 19th of July, 1865.

"To this claim of said Henry, set forth in his bill filed in said cause, your orator filed his separate answer to the bill, admitting the execution of the two contracts, but alleged, that he was induced to make them by false and fraudulent misrepresentations of the said Henry of the great value of said land, because of a thick vein of asphaltum coal, which he had discovered, underlying the said land at the depth of one hundred and eight feet from the surface; that at the next term of the court, after filing his answer to said bill, he filed his cross-bill against the said Henry and Wilson, the latter, as alleged in the original bill, being the owner by assignment from said Henry of $800.00 of the purchase money, claimed to be due under the contract of July 19, 1865.

"By the said cross-bill it was alleged, that the said contract of the 9th of March, 1865, was entered into by your orator, and a large sum of money paid in accordance with the terms thereof, through the false and fraudulent statement, made by said Henry, of the valuable discovery, made by him, as above stated; and that afterwards, and before the deceit and fraud of said Henry was discovered, with a view to obtain other money from your orator, with similar false and fraudulent assurances induced your orator to enter into the contract of the 19th of July, 1863, and obtained other large sums of money thereon; and, by reason of the said fraud of said Henry, your orator, in his said cross-bill, prays to be relieved from the said contract, and restored to his money, so fraudulently obtained by said Henry.

"Process to answer the said cross-bill was issued, and served upon said Henry and Wilson, and such proceedings had, that at the April rules, 1869, held for said court] the said cross-bill was taken for confessed, as to the defendants.

"Afterwards, on the 25th day of October, the said Henry filed his answer to said cross-bill, to which the plaintiff replied generally; that such proceedings were had, that on the 8th day of May, 1869, a decree was rendered, in favor of said Henry and Wilson, on the original bill, for the amount of their claim, and upon the cross-bill, dismissing it with costs.

"The said original bill and exhibits, the answer of defendant and exhibits, the cross-bill and exhibits, and answer of Henry thereto, together with the record of the proceedings therein, are made part of this bill. That from the decree rendered as above, your orator appealed to the Supreme Court of Appeals; and such proceedings supreme court of appeals

were had therein, that on the 24th day of February'' 1871, it was considered and adjudged, that said Henry obtained the first of said contracts from your orator, through artifice and misrepresentation; and that it was such fraud as could not be detected by any reasonable diligence on the part of your orator; a ruse so studied' and a misrepresentation, though gross, so well concealed, was well calculated to deceive the most vigilant and discreet; that a confirmation of such a contract, is so inconsistent, so likely to be connected with fraud, that it ought to be watched with the utmost strictness, and stand upon the closest evidence, as an act done with all the deliberation, that ought to follow a transaction, the effect of which is to ratify that, which in justice ought never to have taken place.

" And for these, among other reasons stated by the Court of Appeals in its opinion, it was adjudged and decreed, that said decree of your Honor's court of the 8th May, 1869, be reversed, with costs, and the cause remanded to said circuit court of Doddridge county, with directions to make up and try at the bar of said court an issue, whether the said Henry G. Davis, at the time of entering into the said contract of the 19th July, 1865, with the said Eugene Henry,.had knowledge, and was fully informed, as to the extent of the fraud, practiced upon him by the said Eugene Henry, which induced him to enter into the said contract on the 9th March, 1865.

On the 27th day of April, 1871, the said circuit court, in accordance with the decree of the Supreme Court of Appeals in said cause, directed the said issue, and that, upon the trial thereof, the proof should devolve upon the said Henry to show, that the said H. G. Davis had had such knowledge of such fraud.

And that afterwards, on the 31st day of August, 1871, a jury was impaneled and sworn to try the said issue, and on the 7th day of September, 1871, rendered the following verdict, viz: 'We the jury find, that the said Henry G. Davis, at the time of entering into the said contract of...

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