Russell v. Dickeschied
| Citation | 24 W.Va. 61 |
| Parties | RUSSELL, ADM'R, v. DICKESCHIED. |
| Decision Date | 19 April 1884 |
| Court | Supreme Court of West Virginia |
Submitted Jan. 26, 1884.
1. If in an action of detinue the defendant claiming no interest in the property sought to be recovered, alleges that the same is claimed by a third person, and files the affidavit prescribed by the first section of chapter 102 of the Code, and such third person is compelled to interplead the plaintiff in said action and does so, and an issue is directed to try the title to said property, and such third person files his bill of discovery against said plaintiff, and an injunction is awarded thereon which was improperly dissolved, and an appeal be allowed from the decree dissolving the injunction, the Appellate Court will not enquire whether the order directing said interpleader was properly made or not. (p. 67.)
2. Aparty to an action at law needing a discovery from the opposite party may in a proper case file a bill of discovery against such party and compel such discovery, although by sections 22 and 23 of chapter 130 of the Code he may compel such party to attend and be examined as a witness for him in relation to the same matters. (p. 69.)
3. It is not necessary in a pure bill of discovery to aver, that the discovery is absolutely necessary or indispensable for the maintenance of defence of the plaintiff's claim. It will be sufficient to state and show, that it is material evidence for him, although it be merely cumulative. (p. 70.)
4. Such a bill of discovery will not become a bill for relief, merely because it prays that a temporary injunction be awarded against the defendant restraining him from prosecuting his action at law, until he answers the bill. (p. 71.)
5. A temporary injunction awarded upon a proper bill of discovery to restrain the defendant from prosecuting her action of detinue, until she answered the bill, was on motion of the defendant dissolved without any answer thereto being tendered or filed. Held:
The court erred in dissolving said injunction. (p. 71.)
Woods, Judge, furnishes the following statement of the case:
On the _____ day of ___________, 1883, Othilie Dickeschied brought against the Exchange Bank of Wheeling, in the circuit court of Ohio county, her action of detinue, to recover the sum of seven thousand four hundred and ninety-six dollars and seventy-five cents of silver coin contained in fourteen linen bags, which had been left with it for safe keeping on the _____ day of March, 1883, by one Wenael Dickeschied, who afterwards stated it to be the property of the said Othilie Dickeschied. The appellant, having been appointed the administrator of one Guenther Schuchardt, who on the 19th of March, 1883, met with a sudden, violent and unexpected death, when he was in his usual health, having no reasonable or probable cause to fear or expect immediate death. Said administrator claimed that the said bags of coin were the property of his intestate, and that as his administrator, he alone was entitled to receive them.
The said Bank appeared to the said action of detinue and filed the affidavit of its cashier, stating that it had the said bags of coin in its possession and keeping; that it made no claim to them; that the same were left with it by Wenael Dickeschied on the _____ day of March, 1883, for safe keeping, who subsequently stated them to be the property of Othilie Dickeschied; that the property was claimed by said administrator; that the Bank did not collude with said administrator, but was ready to deliver the said property to the owner thereof as the court might direct; and on the motion of said Bank, said administrator was made a defendant in the action of detinue, and was required to state the nature of his claim to the coin, to maintain or leinquish the same. The administrator appeared as required, claimed the coin as the property of his intestate, and denied that the said Othilie Dickeschied had any title thereto, and thereupon the court on her motion, directed an issue to be tried to ascertain whether the said coin or any part thereof, was, at the time her action of detinue was instituted, the property of the said administrator, in which issue he was made plaintiff and she defendant. At this stage of the inquiry the administrator filed his bill in the said court against Othilie Dickeschied, alleging the foregoing facts, and then stated as follows:
" Your orator further shows, upon information and belief, that for many years before and until the time of his death, the said Guenther Schuchardt, deceased, resided in a house belonging to him in the said City of Wheeling, a portion of which was used by him as a drug store and the remainder of which was used and occupied by him as a dwelling; that for years before his death, the said Guenther Schuchardt had been in the habit of accumulating and hoarding coin; that some time before his death, the said Guenther Schuchardt had concealed beneath the earth in a secret portion of the cellar of his said house, the silver money which is in controversy in the said action, and which at the time it was so concealed was the money and property of the said Guenther Schuchardt and of him alone; that the said last mentioned silver money remained in the said house until after the death of the said Guenther Schuchardt, and that it remained concealed under the earth in the said cellar as aforesaid, either until after the death of the said Guenther Schuchardt, deceased, or until the day before his death.
Your orator further shows, likewise, on information and belief that on the 19th day of March, A. D. 1883, the said Guenther Schuchardt, deceased, met with a sudden, violent and unexpected death, and that until the last named day the said Guenther Schuchardt was in his usual health and in no fear or expectation of, and having no reasonable or probable cause to fear or expect immediate or proximate death.
Your orator further shows, upon information and belief that the said Othilie Dickeschied claims to be the owner of the said silver money now in controversy in said action.
Your orator further shows that in the view of the facts of which he has information and belief, he is advised and says that the said last mentioned silver money was the property of the said Guenther Schuchardt at the time of his decease, and is now the property of your orator.
Your orator is advised and says that it is material for him, in order that he may properly maintain his side of the issue in said action, that he should have the discovery hereinafter prayed with reference to certain of the matters in this bill set forth.
In tender consideration whereof, and forasmuch as your orator is remediless in the premises save by the aid of a court of equity, your orator prays that the said Othilie Dickeschied may be made defendant to this bill and may be required to make full, true, direct and perfect answers to every of the following interrogatories--that is to say:
1st. Whether for many years before and until his death, the said Guenther Schuchardt, deceased, resided in the said City of Wheeling, in a house belonging to him, a portion of which was used for him for a drug store and the remainder of which was used and occupied by him as a dwelling?
3d. Whether for years before his death, the said Guenther Schuchardt had been in the habit of accumulating and hoarding coin?
3d. Whether some time before his death, the said Guenther Schuchardt concealed beneath the earth, in a secret portion of the cellar of his said house, the silver money which is in controversy in the said action.
4th. Whether at the time it was so concealed as aforesaid, the said last mentioned money was the money and property of the said Guenther Schuchardt, now deceased, and of him alone?
5th. Whether the said last mentioned silver money remained in the said house until after the death of the said Guenther Schuchardt?
6th. Whether the last mentioned money remained concealed under the earth in the said cellar as aforesaid, either until after the death of the said Guenther Schuchardt, deceased, or until the day before his death?
7th. Whether on the 19th day of March, A. D. 1883, the said Guenther Schuchardt met with a sudden, violent and unexpected death?
8th. Whether until the day last named, the said Guenther Schuchardt was in his usual health and in no fear or expectation of and having no reasonable or probable cause to fear or expect immediate or proximate death?
Your orator also prays that a temporary injunction, until the further order of your honorable court, to be made upon full true and perfect answers being filed to this bill, may be granted, restraining the said Othilie Dickeschied, her attorneys, agents and servants, from further prosecuting the said action at law brought by her as aforesaid against the Exchange Bank of Wheeling, and in which your orator has been made a party as aforesaid. And your orator will ever pray & c."
This bill was presented to the judge of said circuit court on the 19th of May, 1883, who refused to award the injunction prayed for. The same was then presented to a judge of this Court, who on the 22d day of May, 1883, awarded the injunction, and on the 25th of May, 1883, the said bill was filed the circuit court of Ohio county. At a circuit court held for that county on the 28th day of May, 1883, the following order was entered:
" HENRX M. RUSSELL, ADMINISTRATOR OF THE )
ESTATE OF GUENTHER SCHUCHARDT, )
vs. ) In Chancery.
OTHILIE DICKESCHIED. )
This day came the defendant, and inpursuance of notice given the complainant, moved the court to dissolve the injunction heretofore granted in this cause by Hon. Thomas C. Green, a judge of the Supreme Court of Appeals, which motion was argued by couns...
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