Wistar v. McManes

• Decision Date: 04 March 1867
• Citation: 54 Pa. 318
• Parties: Wistar <I>versus</I> McManes.
• Court: Pennsylvania Supreme Court

54 Pa. 318

Wistar versus McManes.

Supreme Court of Pennsylvania.

January 15, 1867.

March 4, 1867.

January 15th 1867.

Before WOODWARD, C. J., THOMPSON, STRONG and READ, JJ. AGNEW, J., at Nisi Prius

This was an appeal from a decree of the District Court of Philadelphia. In Equity.

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T. E. McElroy and S. C. Perkins, for appellant.—The demurrer should have been overruled,

1. Because the bill is for discovery and relief, the former being incidental to the latter. A demurrer to the discovery alone will not lie to such a bill. It should be to the relief: Morgan v. Harris, 2 Bro. C. C. 124. If the party has a right to relief in equity he has a right to an answer from the defendant to every allegation of his bill, the admission of the truth of which, or the proof of the truth of which, is necessary to entitle him to that relief: Hare on Discovery 4, 5, 292; Story's Eq. Pl. §§ 312, n. (2), 546-7; Brightly's Eq. Jurisp. § 616; 1 Daniel's Ch. Pl. 571; 1 Mad. Ch. 216; Mitf. Eq. Pl. 184-5 (5th ed.); Story Eq. Pl. §§ 546-7; Waring v. Macreth, Forrest 129; Brownell v. Curtis, 10 Paige 210, 214; Dell v. Hale, 2 Y. & C. 1, 3; Gallagher v. Roberts, 1 W. C. C. R. 320.

2. Because it is bad in point of law.

It is based upon two grounds, that the judgments "are still the subject of judicial investigation and determination" before the Court of Common Pleas, and that they are "res judicata" by the District Court.

1. As to the first ground, it is not true in point of fact. Neither the auditor nor the court has any right to "investigate" or "determine" the judgments; both are bound by them until reversed by the proper tribunal.

2. The second ground also is untrue in point of fact. The sole question presented to the court was, Shall an issue be awarded? The question raised by the bill is, was there or not any usurious interest in the consideration of the judgment-notes on which the judgments were entered up? Child v. Gibson, 2 Atk. 603. If a former judgment or decree is pleaded in bar of a new bill, it must appear to be ad idem.

It is doubtful whether a bill of discovery will lie in support of a mere motion for an issue.

The only recognised purpose of such a bill is to obtain an answer to be read on the trial of a suit or action at law; and where there is no trial to be had there can be no discovery to be sought: Hare on Discovery 71; 1 Mad. Ch. 196-9; Adams Eq. 120-1; Story's Eq. Pl. §§ 311, 319; 2 Story's Eq. Jurisp. § 1483; 1 Smith Ch. Pr. 498; Lubé Princ. of Eq. Pl. 20 and note; 2 Hoffman's Ch. Pr. 107-9; Mitf. Eq. Pl. 186, 191-2; Brightly's Eq Jurisp. § 477; Hare on Discovery 111-12; Whitmore v. Thornton, 3 Price Ex. R. 248.

Supposing it will lie; by filing such a bill complainant would have submitted his cause to the decision of an inferior tribunal, without the right to a writ of error, had that decision been against him: Nice v. Bowman, 6 Watts 26; Kalbach v. Fisher, 1 Rawle 323; Withers v. Haines, 2 Barr 435; Skidmore v. Bradford, 4 Id. 296; Henry v. Brothers, 12 Wright 71.

Why should he be compelled to file his bill for discovery merely, and then try his case at law, when, by adding a prayer for relief, he could have his cause heard and decided without such trial, and thus avoid a multiplicity of suits, which equity abhors? As at that time he did not know that McIntyre knew nothing about the usury, he could not have sustained a bill for relief, as he could not then have averred, as he was bound to do, that he had no evidence other than the oath of the plaintiff in the judgments to sustain his case: Story's Eq. Pl. §§ 313, 319, n. 3, 324 a; Gilder v. Merwin, 6 Wh. 522, 543.

But whether such a bill could have been filed or not, and even had the very question in the cause been in any way heard on the hearing of the rules and determined against the complainant, that decision would not be such a res judicata as would preclude him from his present bill.

The cases which have been held to be such res judicata as will preclude a plaintiff from filing his bill are those where he has had a trial, at which the whole matter was gone into and discussed, followed by a verdict against him; or a trial at which it might have been discussed, or where knowing, before the trial, that he could prove his case only by the oath of his opponent he did not call him, or file a bill of discovery where he did not call him: Field v. Beaumont, 1 Swanst. 204; Whitmore v. Thornton, 3 Price's Ex. R. 241-8; Graves v. Houldich, 2 Id. 147; Norton v. Woods, 5 Paige's Ch. R. 249; Duncan v. Lyon, 3 Johns. Ch. C. 351; Earl of Oxford's Case, 3 L. C. in Eq. (Hare & Wallace's notes, 3d ed.) 154; Protheroe v. Forman, 2 Swanst. 227; Vilas v. Jones, 1 Comst. 274; Hankey v. Vernon, 2 Cox 12; Taylor v. Sheppard, 1 Y. & C. 271; Peterson v. Bangs, 9 Paige 627, 634; Kalbach v. Fisher, 1 Rawle 323; Skipwith v. Strother, 3 Rand. 214; Gill v. Webb's Adm., 4 Monroe 299; Cochran v. Eldridge, 13 Wright 365, 371.

Where a contract is made or security taken in violation of law, or contrary to its declared and established policy, as for a gaming debt or upon usurious interest, a bill will lie notwithstanding a verdict and judgment at law: Thomas, Trustee of Lloyd, v. Watson, 9 Md. 536, note; 1 Story's Eq. Juris. § 302; Gough v. Pratt, 9 Md. 526; West v. Beames, 3 Harris & Johns. (Md.) 568; Bitch v. Fenby, 6 Md. 218; White v. Washington, 5 Grattan 645; Woodson & Royster v. Barnatt & Co., 2 Hen. & Munf. 80; 3 Rand. 214; 4 Monroe 299, supra.

But an application, as in the present case, is addressed to the discretion of the court. The court itself is not concluded by it, but may grant another similar motion and decide the other way. It cannot be called a trial, or the decision upon it a verdict. It is not such a res judicata as will preclude a subsequent bill in equity upon the same ground: Earl of Oxford's Case, 3 L. C. in Eq. (Hare & Wallace's notes, 3d ed.) 188-9; Bromley v. Holland, 5 Ves. 610, 617; s. c. 7 Id. 14, 15; Foster v. Davenport, cited in the case in 5 Vesey; Simpson v. Hart, 14 Johns. R. 63; Simpson v. Hart, 1 Johns. Ch. C. 98; Arden v. Patterson, 5 Id. 44; Fanning v. Dunham, 5 Id. 122, 141, 142; Vaulx v. Sherry, Finch's R. 472; Picket v. Morris, 2 Wash. (Va.) R. 255; Galbraith v. Black, 4 S. & R. 207; Earl of Oxford's Case, 3 L. C. in Eq. (Hare & Wallace's notes, 3d ed.) 154; Cochran v. Eldridge, 13 Wright 365; Stockdale v. Ullery, 1 Id. 486; Act April 16th 1845, § 3, Purd. 502, pl. 6, Pamph. L. 542; Yates v. People, 6 Johns. 431; Bromley v. Holland, 5 Ves. 610; s. c. 7 Ves. 14, 15.

E. C. Quinn and W. L. Hirst, for appellee.—The demurrer is not to the discovery or the relief, but to the jurisdiction. It is based upon the principle that, a court of competent jurisdiction having once determined the matter in issue, it is res judicata, and no other court has a right to inquire into such a judgment.

"The demurrer may be to the relief sought, it may be to the discovery, or it may be to both, or to only part of one or of both:" Adams's Doctrine of Equity 334, and the cases cited; Story's Equity Plead. § 447; Brownell v. Curtis, 10 Paige 210. The appellant is not entitled to the discovery, when, if obtained, it cannot be material: Wigram on Discovery 19; Hare on Discovery 4, 5; Story's Equity Plead. § 313; Gallagher v. Roberts, 1 W. C. C. R. 320.

The appellant had three opportunities to contest the matter complained of in his bill: —

1st. In the suits upon the attachment in execution.

2d. In the Court of Common Pleas.

3d. In the District Court, sitting at law: Skidmore v. Bradford, 4 Barr 296; McCormick v. Hancock, 2 Id. 310; Ogilsby v. Lee, 7 W. & S. 444; Erie Canal Co. v. Laury, 6 Am. Law Reg. 750; 1 Troubat & Haly's Pr. 570; Thompson v. Hill, 3 Yerger 167; Flournoy v. Holcomb, 2 Munf. 34; Weber v. Samuel, 7 Barr 519.

The appellant had a full and complete remedy at law, which he exhausted by applying and submitting to the judgment of the District Court, upon due proof, the matter set forth in his bill: Cochran v. Eldridge, 13 Wright 365; French v. Garner, 7 Porter 549.

The cases cited by the appellant either do not sustain him, or are not well considered.

The jurisdiction of courts of equity in Pennsylvania is special, and limited within narrow bounds: Brightly's Eq. Juris. § 25; Id. 242, § 283; Cochran v. Eldridge, 13 Wright 365; Hagner v. Heyberger, 7 W. & S. 104; Commonwealth v. Rush, 2 Harris 193; Gilder v. Merwin, 6 Wh. 522.

A court of general equity jurisdiction could not grant the relief prayed for by the appellant: The Insurance Co. v. Hodgson, 7 Cranch 332; Bolton v. Scott, 2 Green 231; Dodge v. Strong, 2 Johns. Ch. R. 288; Smith v. Lowry, 1 Johns. Ch. R. 320; French v. Garner, 7 Porter 549; Veech v. Pennebacker, 2 Bibb 326; Campbell v. Morrison, 7 Paige 157; Moffit v. White, 1 Littell 324; Thomas v. Hearn, 2 Porter 262; Andrews v. Fenter, 1 Ark. 186; Lansing v. Eddy, 1 Johns. Ch. R. 49.

The general rule is that a court of equity will not relieve against a judgment at law on the ground of its being contrary to equity, unless the defendant below was ignorant of the fact in question pending the suit, or it could not be received as a defence. If a party will suffer judgment to pass against him by neglect he cannot have relief here for a matter of which he might have availed himself at law: Royster v. Watson, 3 Porter 436; Jones v. Kirksey, 10 Ala. 579; Mallory v. Matlock, Id. 595; Barrows v. Doty, 1 Harrington Ch. R. 1; Wright v. King, 1 Harrison Ch. R. 12; Shelton v. Gill, 11 Ohio 417; Bateman v. Willoe, 1 Schoales and Lefroy 201; Baker v. Elkins, 1 Johns. Ch. R. 465; Standard v. Rogers, 4 Hen. and Munf. 437; Robinson v. Galbraith, 4 Bibb 184; Truly v. Nicholson, 4 How. 141; Gray v. Faris, 7 Yerger 155; Harrison v. Harrison, 1 Litt. 140; Smith v. McIver, 9 Wheat. 532; Cunningham v. Caldwell, Hardin 123; Perrine v. Striker, 7 Paige 598; Penny v. Martin, 4 Johns. Ch. R. 566; Moore v. Dial, 3 Stewart 155; Dugan v. Cur...