State v. Pingley
| Citation | 100 S.E. 216,84 W.Va. 433 |
| Parties | STATE, FOR USE OF PINGLEY v. PINGLEY ET AL. |
| Decision Date | 09 September 1919 |
| Court | Supreme Court of West Virginia |
Submitted September 3, 1919.
Syllabus by the Court.
Papers annexed or attached to a declaration, as for exhibits or parts thereof, are not parts of it, and cannot be considered upon a demurrer thereto.
A declaration on an injunction bond, alleging procurement of an injunction to have been the sole purpose of the suit in which the bond was given, dissolution of the injunction expenditure of money in payment of attorney's fees in effecting such dissolution and not otherwise, and nonpayment of such fees and of the penalty of the bond by the defendant states a good cause of action.
The allegation of such nonpayment may be general and awkwardly expressed, in so far as it relates to the persons to and by whom payment should have been made, if it is broad enough to include all of such persons.
Upon such a demurrer, the disposition of the chancery cause, on an appeal from the decree of dissolution and dismissal, cannot be considered.
Case Certified from Circuit Court, Randolph County.
Action by the State of West Virginia, for the use of George W Pingley against D. W. Pingley and others. Demurrer to amended declaration overruled, and decision certified. Order adjudging correctness of decision to be entered, and certified to circuit court.
A. M. Cunningham, of Parsons, for plaintiff.
W. B. & E. L. Maxwell, of Elkins, for defendants.
Having overruled a demurrer to an amended declaration claiming by a single count, right of recovery, upon an injunction bond, of attorney's fees, as part of the damages occasioned by the injunction and as an item within the indemnity afforded by the bond, the trial court has certified its decision upon the question of the sufficiency of the declaration to this court for review, upon the joint request of the parties. Being of the opinion that the declaration, as originally filed, was insufficient, the court sustained a demurrer to it. Thereupon the plaintiff amended it at the bar of the court in material respects, and the court overruled a demurrer to the amended declaration.
Fundamental differences between law and equity procedure render it impossible to consider the bill and final decree in the equity cause, attached to the declaration, as exhibits filed therewith and parts thereof. In actions at law, the pleadings are always for the court, and the evidence goes to the jury primarily. In equity causes, both the pleadings and the evidence go to the court for consideration. Consequently the annexation of documents, constituting the basis of right of action, to the declaration as for exhibits therewith and parts thereof, has never been recognized. In so far as a document is relied upon to fix and determine the rights of the parties by contract, adjudication, or legislation, the declaration should set forth its legal purport and effect and then the document goes to the jury as evidence. Upon an inquiry as to the sufficiency of a pleading, the court is not supposed to look to the evidence at all. Nor does good pleading countenance a narration or statement of the evidence in a pleading. Snyder v. Wheeling Electrical Co., 43 W.Va. 661, 28 S.E. 733, 39 L. R. A. 499, 64 Am. St. Rep. 922. "In the absence of a statute, the annexing and filing of papers as exhibits to a pleading does not make them a part thereof, and they cannot be referred to for the purpose of supplying the omission of a material allegation or curing a fatal defect." 8 Ency. Pl. & Pr. 740. This text is well sustained by authority. The rule is not relaxed in even the code practice states. Burkett v. Griffith, 90 Cal. 542, 27 P. 527, 13 L. R. A. 707, 25 Am. St. Rep. 151; Brooks v. Paddock, 6 Colo. 36. This conclusion disposes of the argument founded upon the so-called exhibits and the printed record of the chancery cause.
Admitting payment of the costs incurred by the defendant in the...
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