Shipley v. Pew
| Decision Date | 15 March 1884 |
| Citation | 23 W.Va. 487 |
| Parties | SHIPLEY v. PEW. |
| Court | West Virginia Supreme Court |
Submitted Jun. 22, 1883.
On May 5, 1855, the plaintiff recovered a judgment against the defendants, and sued out execution thereon within the year. The last execution was returnable to the first Monday in January, 1859, upon which no return of any officer was ever made. On September 16, 1874, the plaintiff filed his bill against the defendants to enforce the lien of his judgment against the real estate of the defendants, which was resisted on the ground that the lien of the judgment was barred by the statute of limitations.
Held:
I. That the plaintiff's right to sue out other executions, or to bring a scire facias or action upon his judgment expired at the end of thirteen years, ten months and fourteen days from the return day of last execution;
II. That the lien of the plaintiff's judgment ceased to exist when his right to sue out other executions, or to bring a scire facias or action thereon, was barred by the statute of limitations; and,
III. That on September 16, 1874, when the plaintiff's suit was instituted, the lien of his judgment had ceased to exist, and that his suit to enforce same could not be sustained. (p 498.)
WOODS JUDGE, furnishes the following statement of the case:
This was a bill filed in the circuit court of Gilmer county on September 16, 1874, by Daniel E. Shipley, surviving partner of Shipley & Howard against Preston Pew, as principal debtor, Peregrine Hays and Levi Johnson as his sureties and Gideon D. Camden, to enforce the lien of a judgment recovered by Shipley & Howard on May 5, 1855, against said Pew and his said sureties, on a forthcoming bond for six hundred and seventy-nine dollars and seventy-nine cents, to be discharged by the payment of three hundred and thirty-nine dollars and eighty-nine and one half cents with interest from November 23, 1854, and seven dollars and seventy-nine cents costs subject to three small credits, amounting in the aggregate to seventy-one dollars and fifty-four cents. The plaintiff claimed that the balance of his judgment was unpaid, and constituted a lien upon certain real estate mentioned in the bill owned by the defendant Hays, and prayed that the same might be sold to pay the balance due upon the judgment and for general relief. The bill further alleged that on July 19, 1859, the defendant Pew confessed a decree in the clerk's office of the said court in favor of the plaintiff for the amount of said judgment, appointing a commissioner to rent certain real estate then owned by him to pay the judgment; and that Pew had since that time conveyed said land to Hays, and that said decree had been unproductive and the judgment still remained unpaid. None of the defendants made defence to the plaintiff's bill but Hays, who, on March 16, 1874, appeared in court and filed his answer, but neither the bill nor answer was sworn to. The answer alleged that the judgment had been fully paid; that he was no party to the suit in which Pew confessed the decree on July 19, 1859; that no bill was ever filed in that cause, and no process was ever served upon him therein; that the suit was never prosecuted; that he had never been made a party to any suit until September 16, 1874, when this bill was filed; that he was not served with process therein until September 26, 1874; that the last execution which issued on said judgment was dated on November 26, 1858, returnable to the first Monday in January, 1859, and that therefore the judgment was barred by the statute of limitations, and he sets up, and relies on the same as a bar to the enforcement of the said judgment against him, and against the said real estate, which he had purchased and paid for, and for which he has long since obtained a conveyance; that plaintiff having taken no steps since July 19, 1859, to enforce the decree confessed by Pew, the suit by reason of said laches has been abandoned and discontinued; he also alleged the existence of certain other unsatisfied judgments against Pew in favor of other persons not parties to the bill, who ought to be made parties defendants, and concluded with the usual prayer to be hence dismissed with costs, but did not ask or pray for any affirmative relief.
On the same day, after the answer was filed, the plaintiff filed a special reply thereto; and the defendant Hays filed a special rejoinder to said special reply, and the plaintiff filed a rebutter to said rejoinder; but no general replication to said answer was at that time filed, although in the final decree it appears that the cause was heard upon a general replication to the answer of Hays. Although the special reply was improper as no affirmative relief was asked for in the answer, and ought not to have been filed, and the rejoinder and rebutter were wholly unwarranted by any of the rules of pleadings in courts of equity, they were allowed to be filed by the consent of the plaintiff and defendant Hays and were by the court treated as amendments made and added to the bill and answer then in the cause; that is to say, the special reply and rebutter of the plaintiff, as amendments to his bill, and the rejoinder of the defendant Hays, as an amendment to his answer. Treating the plaintiff's bill as so amended, it alleged, (in addition to what has been already stated), that said judgment was not paid; that the last execution which issued thereon was returnable to the 7th of January, 1859; that a state of war existed in the county of Gilmer from the 27th of April, 1861, the date of the proclamation of the President of the United States declaring the blockade, until the 2d of April, 1866, the date of his proclamation declaring that peace was restored and that during the period between the 27th April, 1861, and the 2d April, 1866, the statute of limitations did not run against his said judgment, and that by excluding that period from the statutory limitation of ten years, the bar would not be complete until the 12th day of December, 1874; that Pew confessed the decree of the 12th July, 1859, at the request of Hays; that Hays purchased said real estate from Pew and agreed to pay the plaintiff's judgment, of which he had full knowledge as he was one of the judgment-debtors; that the civil war continued longer in West Virginia than in any other State by reason of the lawlessness of many of its people, and that the " plaintiff living in Maryland and sympathizing with the rebellion was unsafe to appear as a collector in West Virginia, and that his retained counsel was not permitted to practice his profession by reason of his participation in the rebellion until 1871, and that he was therefore obstructed in the prosecution of his legal rights to enforce payment of said judgment; " and that from 1869, when the creditor's bills of Northwestern Bank of Virginia v. Samuel S. Hays, & c., and of R. P. Camden v. Peregrine Hays, & c., were pending in said court the statute of limitations did not run against the plaintiff's said judgment. Treating the answer of Hays as amended by his rejoinder it alleged (in addition to what has been already stated), that the judgment has been fully paid off, as will be seen from the report of Special Commissioners Linn and Norris in the chancery causes pending in said court, of Northwestern Bank of Va. v. Samuel S. Hays, & c., and of R. P. Camden v. Peregrine Hays, & c., made an exhibit in said rejoinder; that flagrant war ceased in West Virginia and in Gilmer county in the month of April, 1865, and that the circuit court of Gilmer county was opened and held in said county on the 30th of May, 1865, and that prior and after that date said court was open for the transaction of business, continuously and regularly, without obstruction or hindrance from said war, and he referred to the " law and chancery order books and the papers, books and files of causes ended and pending and all the papers pertaining to the said circuit court of Gilmer county, which are in the custody and are a part of the records of this Court, as evidence of the matters therein before pleaded" --and again relied upon the statute of limitations, in bar of the plaintiff's judgment.
On the 17th of March, 1876, the cause was heard and the circuit court rendered the following decree:
" This cause came on this day to be heard upon the bill of the plaintiff, answer of defendant, Hays, special replication thereto, rejoinder and rebutter, and exhibits, and was argued by counsel. On consideration whereof, it is adjudged, ordered and decreed that this cause be referred to any one of the commissioners of this court--
1st. To ascertain and report the balance due on the judgment claimed by the plaintiff, and when the last execution which may have issued thereon was returnable.
2d. To ascertain and report what is the several amounts of the judgments alleged to be outstanding by the defendant, Hays, in his answer as binding the lands of the defendant, Pew, are unpaid and the order and priorities of the same.
3. To ascertain and report whether the defendant, Pew, is the owner of any other lands than the lots and tracts claimed by the defendant, Hays.
4th. That said commissioner ascertain and report by what title Hays claims or holds said lots and tracts of land. If purchased from defendant, Pew, when, and the consideration, and if deeds were made, when recorded. And said commissioner will report the testimony taken by him as well as any paper evidence of title and that he report any other and further matter he may deem necessary, with leave to examine any of the parties upon oath or upon interrogatories."
The commissioner made a report as directed, to which no exceptions were filed, whereby it appeared that all the judgments against said Pew, mentioned in the answer of...
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