Stewart v. Stewart et al

• Decision Date: 28 November 1885
• Parties: Stewart v. Stewart et al
• Court: West Virginia Supreme Court

27 W.Va. 167

Stewart v. Stewart et al

Supreme Court of Appeals of West Virginia.

Submitted June 4, 1885.

Decided November 28, 1885.

1. A bill in a suit in equity brought for the purpose of subjecting property to the lien of an attachment and also to have a confessed judgment-lien on the attached property declared fraudulent as to the plaintiff's lien, is not multifarious, (p. 171.)

2. It is a question of constitutional obligation not of state-policy, whether our courts will enforce a judgment of another state-court of competent jurisdiction, having jurisdiction in the case, (p. 173.)

S. When a judgment or decree of the court of another state is sought to be enforced in a court in this State, the court in this State may enquire into the jurisdiction of the court, which rendered the judgment or decree, and if it appears that such court had no jurisdiction, the judgment or decree is void, but if it had jurisdiction, the judgment or decree is valid and binding in this State, (p. 174.)

4. In deciding upon the effect to be given to a judgment or decree so rendered in another state it must be regarded as well settled, that the record of the decree must have the same effect in this State as in the state where rendered, (p. 174.)

5. The record of a decree of the court of common pleas of a county in another state in the absence of evidence to the contrary must be regarded as the record of a decree of a court of general jurisdiction, (p. 174.)

6. If the court of another state, which rendered the decree, was a court of general jurisdiction, the presumption is, it had jurisdiction of the particular case, and, to render the decree void, this presumption must be overcome by proof, (p. 174.)

7. A decree for alimony not in a divorce suit, rendered by an Ohio court having jurisdiction will at the suit of the wife against the husband be enforced in this State, (p. 175.)

8. In a suit, where the defendant demurred to the bill, which demur-rer was overruled, and he did not answer, but after sale of his property in the suit he riled written exceptions to the report of sale, which were overruled, and the sale confirmed, and he appeals, and only assigns errors in the decree overruling his demurrer and overruling his exceptions and confirming the sale, his appeal will be maintained, notwithstanding he does not ask the court below to reverse decrees rendered in his absence, as he complains of no errors in such decrees, (p. 175, j

9. Where sixty-six acres of land were sold by acommissioner in a suit for $1,961.00, and thedefendant showed an offer of an advancebid of $5.00 per acre, the bidder offering to comply with such terms as the court might impose, it was the duty of the court to accept the bid, and if such terms were complied with, to set aside the sale and order a re-sale of the property, (p. 176.)

10. Where the sheriff has returned the proeess served on the defendants, and the court has ordered the bill taken for confessed as to them, and final decree has been entered in the cause, one of such defendants will not be permitted to contradict the return of the sheriff to such summons and show, that the process was not served on him in this State but in another state, (p. 177.)

J. R. Donehoo for appellant.

G. W. Caldwell for appellee.

Johnson, President:

Cynthia Stewart in September, 1880, filed her bill in the circuit court of Hancock county against her husband, Samuel Stewart, and one Caroline Shepherd, The bill in substance alleges, that, in September, 1878, she brought a civil action against her husband, Samuel Stewart, in the court of common pleas within and for the county of Columbiana in the state of Ohio (the same being a court ot record) for the recovery of alimony and for such other and further relief as equity might require." It further alleges, that in said suit the court decreed her $2,500.00 as alimony payable in ten days, and if not paid in ten days an execution might issue. The Ohio record of the court of common pleas is filed as an exhibit with the bill. The bill alleges further that the defendant, Samuel Stewart, owns a tract of land, describing it, in Hancock county; that the defendant is living in adultery with one Caroline Shepherd at his dwelling-house in Beaver county, Pennsylvania, adjoining the land in Hancock county; that after said suit for alimony had been commenced in Ohio, the said Samuel Stewart confessed in the office of the clerk of the circuit court of Hancock county a judgment in favor of said Caroline Shepherd tor the sum of $1,400.00, which judgment was confessed with intent to delay, hinder and defraud creditors of said Stewart; that she has attached the said land in this suit to pay said claim; that both said Stewart and Caroline Shepherd are non-residents of West Virginia. The bill prays, that said Stewart and Caroline Shepherd be made defendants, and said judgment may beset aside as fraudulent, and a decree of sale of said land may be entered to pay her said debt against said Stewart and for general relief.

On November 9, 1881, the defendant, Samuel Stewart, appeared and demurred to the bill on the following grounds: "First. It is multifarious.

"Second. It declares the fact that the plain tiff has not been divorced from the defendant and therefore can not maintain the suit.

"Third. The bill improperly seeks to enforce an order of a foreign court, as a lien upon real estate within this State.

u Fourth. The plaintiff can not attach the real estate of her husband.

" Fifth. The order of the court of common pleas of Columbiana county Ohio could only have been enforced by attachment and sequestration, and is not such an order as could have been enforced against the property, and it does not therefore furnish a basis for suit in this court.

" Sixth. As it docs not appear that the plaintiff is a resident of this county, and does not appear that this defendant is a non-resident, this court has not jurisdiction of this cause.

" Seventh. The plaintiff can not maintain this suit in her own name.

" Eighth. The paper marked * Exhibit A.' and filed as a part of the bill is not properly certified."

The cause came on to be heard on March 27, 1883, u on the bill and exhibits filed therewith, the former orders made and entered therein, the process of summons duly executed as to both of said defendants, the order of attachment issued inlaid cause and duly docketed, the levy endorsed on said attachment by the sheriff of Hancock county, and the depositions filed in said cause taken on due notice to said defendants, and was argued by counsel. And the said defendants not having, either jointly or severally, answered said bill, although a rule to answer was awarded against them, the said bill is taken forconfessed as to them and each of them. The decree proceeds~to ascertain the indebtedness of said Samuel Stewart to the plaintiff to be $2,500.00 with interest, &c, and require him to pay the same to the plaintiff with the costs of the suit, sets aside said judgment confessed to Caroline Shepherd, so far as it appears to be a prior lien to that of the plaintiff on said land, and orders the attached property to be sold, unless Samuel Stewart should pay the debt of the plaintiff within thirty days," &c.

On the 25th day ofJune Caroline Shepherd presented her petition praying said court to re-hear the case as to her, and that she be allowed to make answer and defence thereto, which was ordered filed. The petition represents that Caroline Shepherd is a resident of Beaver county, Pennsylvania; that a decree has been rendered against her greatly affecting her rights, by which a valid judgment in her favor was postponed to the claim of the plaintiff; "that said decree was rendered against petitioner by default, she never having appeared or made defence; that your petitioner was not served with process in said suit in this State, having been served merely with a copy ot said process at her residence in said Beaver county, Pennsylvania, which, as she was advised by her counsel, was not such service as was binding upon her, and that she had never had notice of said decree until in June present, 1883." She prayed that the cause as to her might be re-heard, and that she be allowed to make answer and defence thereto, &c. The petition was sworn to.

The commissioner appointed to make sale of the property made his report on June 25, 1883, that he had duly advertised, &c, and sold said attached property and G. D. Swearingen became the purchaser thereof at $1,961.93 and has complied with the terms of sale. On the 26th of June Samuel Stewart filed his exceptions in writing to the said report on the ground that the property sold for an inadequate price, and that Caroline Shepherd would bid 16f per cent in advance of the price at which it was sold, if it should be again offered tor sale, and tendered her offer in writing. He filed his own affidavit, that said land sold for $30.00 per acre which, he says, was a grossly inadequate price; "that the said real estate is in affiant's judgment and belief worth at the least $40.00 per acre, and he believes it to be worth $50.00 per acre." The written offer oi Caroline Shepherd is in these words:

uIn the Circuit Court of Hancock County, To the Honorable Geo. E. Boyd, Judge of said Court: "The undersigned Caroline Shepherd, one of the defendants in the above entitled cause, hereby offers to your honorable court, that she will bid for the real estate sold by special commissioner Caldwell under decree made in this cause on June 25, 1883, the sum of $35.00 per acre, and. that she will in all things fully comply with the terms of sale, and she hereby offers to give bond in such sum as the court may require, conditioned to comply with the offer here made.

"Caroline Shepherd. "By J. R. Donehoo, her Solicitor."

On June 27, 1883, the court entered an order denying the prayer of Caroline Shepherd's petition and on the same day overruled the exceptions to the report and confirmed the sale. From the decree...