Turner v. Stewart.
| Decision Date | 07 June 1902 |
| Citation | 51 W.Va. 493 |
| Parties | Turner v. Stewart. |
| Court | West Virginia Supreme Court |
A judgment or decree for a debt in favor of A against B is conclusive, both between the parties and as to strangers, of the existence, justness and amount of the debt, and can be impeached by a party or a stranger only for fraud or collusion. It can be impeached therefor, not collaterally, but only by a direct proceeding to set it aside by original bill or cross bill or answer, (p. 497).
The right of a surety to be discharged in equity by extension of time given by the creditor is personal to the surety, and cannot be used by another creditor of such debtor, (p. 499).
A submission to arbitration of an existing controversy entered in court, or by agreement out of court providing that the award shall be entered as the judgment or decree of the court, is not revocable, except by the court, and will bar a suit upon the demand submitted. But a provision in a contract that any future controversy under it shall be arbitrated will not prevent an action, (p. 499).
Where a bill in equity contains some matter proper for relief, and some matter not calling for relief, a general demurrer is not proper, and there is no error in overruling it. The de- murrer should be aimed specially at the improper matter. Where, however, after overruling such general demurrer, the court gives relief only justifiable upon such improper matter, it is reversible error, (p. 499).
A surety having in his hands a fund which he may apply to pay the debt is not released by indulgence extended the principal debtor by the creditor, (p. 501).
A surety will not be released by indulgence to the principal by the creditor in any case where it clearly appears that the act of the creditor has worked no real injury to the surety, as where the principal is notoriously insolvent at the time. (p. 501).
A submission to arbitration of a controversy pending in a suit not joined in by all interested in that controversy is void as to those not joined in the submission, (pp. 502, 503).
An award must have mutuality in its effect. If it will not avail one party to his benefit, it will not bind him to his prejudice in favor of another. An award does not avail or bind a stranger, (p. 503).
An award which is for any reason void does not merge or conclude a matter to which it relates, (pp. 504, 505).
A surety claiming release by indulgence to the principal debtor must prove that he is a surety. That burden rests on him. (p. 498).
An agreement by a creditor to submit his claim to arbitration, the award to be returned to court for judgment upon it, does not thereby release the surety who does not unite in the award, (p. 499).,
An award is not of itself a lien on land. To make it a lien, or to give execution, it must be made the judgment or a decree of a court, (p. 505).
An award returned to court must be entered up as the judgment of the court, after rule or notice to the parties to show cause why it should not be entered as the judgment of the court, in order to constitute a lien, or have writ of execution, (p. 505).
The objection that a surety is released from a debt by reason of indulgence granted to the principal debtor cannot be made by mere exception to the report of a commissioner. The objection by a defendant must be made by answer or other proper pleading, (p. 497).
An answer not intended as a mere defense to the bill, but to affect the rights of a co-defendant, must make him a party, and call for relief against him upon its facts, as in case of a cross bill, and process to answer it must be served upon that defendant, (pp. 497, 498)..
A decree must have for its basis a proper pleading giving adequate facts to support it. (p. 498).
The doctrine of merger is not inflexibly applied in courts of equity. It will not be there applied to destroy the security of a decree as a lien to the defeat of justice, (p. 504).
A judgment or decree will not be merged by an award upon the same original cause of action not made the judgment or decree of a court; but where the first judgment is the very subject of the arbitrament, it is merged and ended by an award whether carried into judgment or not. (p. 505).
Chapter 108 of the Code allowing an award to be entered as the judgment of a court is only a cumulative remedy, and does not take from it its common law force, though not entered as such judgment, (p. 505).
Appeal from Circuit Court, Wood County.
Suit by Smith D. Turner against Samuel Stewart and others. ' Decree for complainant, and defendant G. L. Seaman appeals.
Reversed.
Walter Pendleton and J. G. Schilling, for appellant. Smith D. Turner and McLuer & McLuer, for appellees.
Smith D. Turner filed a bill in the circuit court of Wood County against Samuel Stewart and others setting up that Turner had recovered a judgment against Stewart and Weils, and that there were other judgment liens upon Stewart's land, and asking that the liens be ascertained and the land subjected to these judgments. Among these liens was a decree of the circuit court of Jackson County in favor of G. L. Seaman against 0. B. Wells and Samuel Stewart for one thousand two hundred dollars and the bill sought to deny it a place as a lien on Stewart's lands on the ground that Stewart was a surety for Wells, and that Stewart and Wells had fded a bill of review in the circuit court of Jackson County to reverse the said decree of one thousand two hundred dollars and that pending such bill Seaman and Wells and all the parties to the suit in which said one thousand two hundred dollars had been decreed, except Stewart, had entered into an agreement submitting to arbitration all matters involved in said suit and in said bill of review, providing that the award, under such arbitration should be entered as the decree of the circuit court of Jackson County, and that an award had been made by the arbitrators in favor of Seaman, Yenoy and Burdett against Wells for one thousand three hundred and fifty-nine dollars; which was returned to and recorded in said court. Stewart died pending Turner's suit, and the case was revived against his representatives. The case was referred to a commissioner to report liens against Stewart's land and the debts against his estate, and the commissioner having reported Seaman's one thousand two hundred dollar decree as a lien, the administrator of Stewart excepted to the allowance of said Seaman's decree either as a lien or debt, claiming that said agreement to arbitrate released Stewart as a surety from the debt, and the circuit court sustained this exception and refused to allow Seaman's claim either as a lien on Stewart's land, or as a simple debt against his estate, and. Seaman has appealed.
One ground specified for the reversal of the decree is, thai the court overruled Seaman's demurrer to the bill. It is laid down in Bensemer v. Fell, 35 W. Ya. 15, and National Bank v. Distilling Co., 41 Id. 530, that a judgment in favor of A against B is conclusive, not only between them, but also as to strangers, as to the existence of the liability between A and B. and cannot be impeached by another creditor of B except for fraud or collusion. And it is further laid down in Glenn v. Morgan, 23 W. Ya. 467, that whilst indulgence to a principal debtor by a creditor will, under circumstances, release a surety, yet this is a defense personal to the surety, and a stranger cannot make this defense for the surety. Upon these principles so much of the bill as assailed Seaman's decree because of the release of a surety by reason of the agreement to arbitrate was improper and subject to demurrer, by a demurrer specially aimed at that matter; but as the demurrer was not such, but a general one, there is no error in the mere overruling of the demurrer, it being very clear that Turner had right to maintain a bill to enforce the lien of his judgment. Miller v. If are, 43 W. Va. 647. But whilst there is no error in merely overruling the demurrer, this does not fully meet the objection of appellant's counsel under this head; for the court went on to administer relief upon that improper matter of the bill, by disallowing Seaman's debt. The demurrer could not dismiss the bill wholly, it is true; but that improper matter must not be made ground of relief. This is upon principle found in Billmgsley v. Men-ear, 44 W. Va. 651, that when a bill contains sufficient allegations for one kind of relief, and insufficient for others, and the court overrules a demurrer and grants relief to the full extent of all the matter, proper and improper, the decree will be reversed. Also Morgan v. Morgan, 42 W. Va. 542.
It is, however, suggested, that though the debt of Seaman could not be denied on matter of the bill, yet as Stewart's administrator excepted to the1 allowance of that debt by the commissioner, that exception was ample to overthrow that debt. I do not think so. Cases are cited to show that when a cause is referred to a commissioner to ascertain debts, one creditor may contest the debt of another. This is so, if he contest on grounds available to him in that way. I do not see that this could be done by mere...
To continue reading
Request your trial