Snowden v. Thompson

• Decision Date: 27 January 1925
• Docket Number: (C. C. No. 322.)
• Citation: 126 S.E. 405
• Court: West Virginia Supreme Court
• Parties: SNOWDEN v. THOMPSON et al.

126 S.E. 405

SNOWDEN

v.THOMPSON et al.

(C. C. No. 322.)

Supreme Court of Appeals of West Virginia.

Jan. 27, 1925.

(Syllabus by the Court.)

Case Certified from Circuit Court, Marshall County.

Suit by C. L. Snowden, substituted as plaintiff instead of J. I. Feather, against J. V. Thompson and others. After overruling demurrer to plaintiff's amended bill, trial court certified cause. Reversed.

James T. Miller, of Moundsville, and Sturgis & Sturgis, of Uniontown, Pa., for plaintiff.

J. C. Simpson, of Moundsville, H. L. Robinson, of Clarksburg, and McCamic & Clarke, of Wheeling, for defendants.

HATCHER, J. On May 3, 1915, James T. Miller, attorney acting for his client, one J. I. Feather, executed an affidavit for attachment in which it is stated that Feather is about to institute a suit in equity in the circuit court of Marshall county against W. M. Thompson, John E. Hess, J. M. Hustead, and j. V. Thompson, who were nonresidents of the state of West Virginia, for money due on a note for $20,000, made on August 11, 1914, to J. I. Feather by J. V. Thompson as principal with the other named parties as sureties. A bill was filed at June rules, 1915 of said court by Feather against the maker and sureties on said note, which, in addition to the facts referred to in the affidavit, alleged ownership by W. M. Thompson of certain interests in numerous tracts of land in Marshall county, with reference to certain deeds, the levy thereon by the sheriff under an order of attachment, and prayed that the real estate of W. M. Thompson be sold to satisfy the plaintiff's claim. The bill was dismissed as to Hess and Hustead at the said rules.

An order appears with the papers certified, showing that in January of 1920 C. L. Snow-den on his petition was substituted as plaintiff in this cause instead of J. I. Feather.

C. L. Snowden as plaintiff filed in open court on October 25, 1923, an amended and supplemental bill, in which are named as defendants W. M. Thompson, J. V. Thompson, A. M. Hustead, J. E. Hustead, W. B. Hustead, John E. Hess, Daniel Sturgeon, Albert Gaddis, and William C. McKean. The last three are trustees in bankruptcy of the estate of W. M. Thompson, bankrupt; and A. M., J. O., and W. B. Hustead are termed "representatives or alienees of J. M. Hustead, deceased."

The amended bill alleges the filing of the original bill by Feather (which is made a part of the amended bill), the substitution of plaintiff for Feather, and that on January 11, 1922, the same was heard, and a decree entered adjudging that there was due and owing to the plaintiff by W. M. and J. V. Thompson on account of the debt and claim in the original bill the sum of $27,579.27 with interest from that date. It then states that a sale of the attached real estate of W. M. Thompson was also then entered, but upon petition of W. M. Thompson a rehearing was granted on the——day of——, 192—, and on February 2, 1923, the said Thompson filed in open court his answer to the original bill, and that by order on a petition filed on the ——day of ——, 1923, Daniel Sturgeon, Albert Gaddis, and Wm. C. McKean, trustees in bankruptcy of the estate of W. M. Thompson, bankrupt, were made parties defendant in the cause with leave to defend the same.

The amended bill further alleges that upon the request of and acting for John E. Hess, who had become embarrassed by reason of being surety on the notes of J. V. Thompson (at that time insolvent), the plaintiff purchased in the months of May and June, 1917 (with money raised in part by plaintiff's own notes and partly from sale of personal property of Hess), for the use of Hess, an assignment to plaintiff of the following notes and judgments:

(1) The note to J. I. Feather by J. V. Thompson et al. as aforesaid, for which he paid $22,875. Judgment had been taken by Feather in the Pennsylvania courts against J. V. and W. M. Thompson in one suit, and against Hustead and Hess in another suit on this note.

(2) A note dated April 3, 1913, for $20,000, made payable to Dr. Wm. A. Longanecker by J. V. Thompson as principal, with W. M. Thompson, J. M. Hustead, and John E. Hess as sureties, upon which judgment had been recovered in a Pennsylvania court by the payee against the principal and sureties for $24,269.67.

(3) A note dated December 14, 1914, for $20,000, payable to Fuller Hogsett at the First National Bank of Florence, Ala., payment whereof according to the bill was guaranteed to that bank "the owner and holder thereof, " jointly by said Fuller Hogsett, W. M. Thompson, and John E. Hess. Both Hogsett and Thompson becoming insolvent, the plaintiff paid for same "in order to protect Hess" (as alleged) the sum of $18,915.15 on June 8, 1917. (This note had been reduced $5,000 by the proceeds from the sale of some collateral pledged therewith.)

The plaintiff recites the payment to him in 1919 and 1920 by the sheriff of Greene county, Pa., of "one-half of the amounts then due on the Feather and Longanecker judgments" out of the proceeds of the sale of lands of J. M. Hustead then deceased, by reason of his (plaintiff's) ownership of those liens, etc. He also admits payments to Hess (with consent of plaintiff) on August 28, 1923, by the trustees in bankruptcy of W. M. Thompson, bankrupt, of $4,900 to be applied on the contributive share of W. M. Thompson "in the judgment herein" (presumably the Feather judgment) and of a like amount for a like purpose by the same trustees at the same date to "the representatives or alienees" of J. M. Hustead, deceased, "and that thereupon, " in the language of the bill, "parts of the real estate herein levied upon and attached were released from the lien thereof." The parts referred to are not described in the amended bill.

Several payments of a few hundred dollars each are acknowledged by plaintiff as dividends paid by the J. V. and W. M. Thompson bankrupt estates respectively.

After allowing such credits as the plaintiff deems proper, he alleges there is yet due him for the use and benefit of John E. Hess as of September 1, 1923, $4,957.97 on account of said Feather and Longanecker notes and $13,038.53 on account of the First National Bank of Florence, Ala., note, amounting in all to $17,996.50 as of that date.

The bill prayed for the relief sought in the original bill, that the decree of January 11, 1922, may stand as entered by the court, as to the said sum of $17,996.50, with interest from September 1, 1923, and as to any amount due A. M., J. E., and W. B. Hustead, "resulting from the distribution of the pro ceeds of the sheriff sales in Greene County, Pa., aforesaid, " that the said decree as so corrected may be enforced, and for general relief.

The defendant trustees in bankruptcy demurred to the amended bill, and the circuit court upon overruling the demurrer certified the cause here for decision upon the points as presented on the demurrer, which are as follows:

(1) The amended and supplemental bill makes a different cause of action from that of the original bill.

(2) A court of equity has no jurisdiction of the claims by notes, other than the J. I. Feather note mentioned and described in the amended and supplemental bill.

(3) There is a variance between the cause of action stated in the affidavit for attachment and the amended and supplemental bill.

(4) There are two additional causes of action having no relation to the cause of action described in the original bill, or to each other, set...