Bowyer v. Knapp

15 W. Va. 277, 1879 W. Va. LEXIS 26

• Court: West Virginia Supreme Court
• Decided: May 10, 1879
• Status: Published

Opinion

JOHNSON, Judge,

delivered the opinion of the Court:

It is assigned as error that the court suppressed the depositions of Mary J. Bowyer and others, taken at Fayetteville, in Fayette county, on the 30th of September, 1875, pursuant to a notice served on defendant, Martin, to take depositions “ in a suit at law pending in the circuit court of Fayette county,” when the suit, in which the depositions were taken, was pending in the circuit court of Greenbrier county.

The bill of exceptions shows, that on tlie 30th day of October, 1875, upon the calling of the case, the defendants endorsed an exception on the depositions of Mary J. Bowyer and others, which exception is as follows: “The .defendants excepted, to the within depositions, because they were noticed to take depositions in a case pending in the circuit court of Fayette county,, and have not received notice to take proofs in the suit pending in Greenbrier county.” The said exception was heard by the court; and upon the hearing, the plaintiff read the notice and return of the sheriff, which notice is in the record and shows that it was to take the depositions of witnesses in a suit pending in Greenbrier county ; and said notice is in all respects correct; and the return of the sheriff of Greenbrier county endorsed thereon shows, that it was duly served upon the defendants.

Here the plain tiff rested; and the defendant O. C. Martin, being sworn in his own behalf, was by counsel for defendants asked to “look at the paper now shown you, and tell whether you received that notice and whether you received any other notice from the plaintiff 'William Bowyer to take depositions ” The last mentioned notice is in the record and is a copy of the notice above referred to returned by the sheriff, except that it has Fayette county as the county in which the suit was pending, instead of Greenbrier. The plaintiff objected to the question as irrelevant and incompetent; and his objection was overruled, and he excepted, and the witness answered : “I received this notice from the sheriff, I never received any other notice, from the sheriff or from plaintiff, William Bowyer, to take depositions.” The answer was objected to and objection overruled by the court, and the plaintiff excepted, and the notice referred to by Martin was proved by him and read ; and.the plaintiff excepted. On cross-examination the witness, Martin, proved that he had no suit with William Bowyer, except this one, and that when he got the notice proved by him, he took it to A. C. Snyder, his counsel in this case and showed it to him, and that his counsel advised him to pay no attention to it. -The depositions are referred to in the bill of exceptions, which show, that there was no appearance for defendants when they were taken.

Upon this state of facts the court suppressed the depositions, and the plaintiff again excepted.

The first question presented by this bill of exceptions is : Could the return of the sheriff be contradicted as was done in this case ? It is well settled, that the return of a sheriff to the process, upon which a foreign judgment has been rendered, is only prima facie evidence of the truth thereof; and the same may be contradicted by parol evidence. Knowles v. Gas Light Co., 19 Wall. 58; Hill v. Mendenhall, 21 Wall. 453; Carleton v. Bickford, 13 Gray 591; McDermot v. Clary, 107 Mass. 501; Ferguson v. Crawford, 70 N. Y. 253; Martin v. Gray, 19 Kan. 558; Pollard v. Baldwin, 22 Iowa. 329; Aldrich v. Kenny, 4 Conn. 379.

It has been held, but against the great current of decisions, that the same rule applies to domestic judgments. Ferguson v. Crawford, 70 N. Y. 253; Martin v. Gray, 19 Kan. 558; Pollard v. Wegener, 13 Wis. 569; Butler v. State, 20 Ind. 169.

The law seems to be well settled, that an official return duly made upon process, emanating from the court or its officer, by a sworn officer in relation to facts which it is his legal duty to state in it, is, as between the parties and privies to the suit and others whose rights are neessarily dependent upon it, conclusive of the facts therein stated ; but as to all other persons such return is pritna facie evidence of such facts, and subject to be disproved whenever it is offered in evidence. But the privity spoken of must be such as would enable the party thus concluded to maintain an action against the officer for a false return to such process. Philips v. Elwell, 14 Ohio St. 240; Callen v. Ellison, 13 Ohio St. 446; Gray v. Gray, 3 Litt. 465; McConnell v. Bowdry’s Heirs, 4 Mon. 399; Costner & Hinckley v. Symonds, 1 Minn. 427; White River Bank v. Downer et al., 29 Vt. 332; McCough v. Wellington, 6 Allen 505; Rivard v. Garndner, 39 Ill. 125; Allen v. Martin, 10 Wend. 300; Ayres v. Duprey, 27 Tex. 593.

The above eases arose from attempts to contradict the sheriff’s return in other cases than those in which the returns were made ; but the same rule applies to cases in which the process issued and was returned. Slayton v. Chester, 4 Mass. 478; Taylor v. Lewis, 2 J. J. Mar. 400; Trebble v. Frame, 3 Mon. 50; Stinson v. Snow, 10 Me. 263; Bolles v. Bowen, 45 N. H. 124; Angell v. Bowler, 3 R. I. 77; State v. Clerk of Bergen, 1 Dutch. 209; Tulis v. Branley, 3 Minn. 277; Egery & Hinckley v. Buchanan, 5 Cal. 53; Delinger’s adm’r v. Higgins, 26 Mo. 180; Stewart v. Stringer, 41 Mo. 400; Tillman v. Davis, 28 Ga. 495. But we do not mean to decide whether under our statute the return of a sheriff upon process may or may not be contradicted by plea of abatement filed in the suit at the proper time. Where the sheriff makes a false return of process, he is liable, of course, to the party injured, who may proceed against him for such false return.

All the authorities we have examined relate to the return on process, emanating from the court, or the officers of the court. I have found no authority bearing directly upon the question presented here, whether the return of a sheriff, upon a notice to take depositions, given by one of the parties to the other, when, as in our State, he is required by statute to serve such notice, is conclusive between the parties, or may be contradicted.

Judge Moncure in Barksdale et. al. v. Neal, 16 Gratt. 316, says: “There is a manifest difference between a return on a summons and a return upon a notice. A summons is directed to an officer, and contains a mandate to which' his return of ‘executed’ is a response that the thing commanded has been done. A notice is not directed to any officer, but to the party on whom it is to be served. It contains no mandate, and therefore a return of ‘executed’ simply is no response, but unmeaning.” We think there is a manifest difference between a notice and summons for the same reasons .above stated, and for the additional reason that the one emanates from the Syllabus 1. court or its officer, and the other from a party or parties to the suit. There is not the same dignity attached to a notice to take depositions that there is to a writ; the same grave consequences could not follow the contradiction of the return of the sheriff to such a notice as to a return upon a writ. The notice to take depositions is but an incident to the suit, while the writ lies at the very foundation of the action; and any invalidity cast upon it might seriously damage the rights of third parties, and unsettle many things that should be regarded as established. We are therefore of opinion that a sheriff’s return of service upon a notice to take depositions is prima facie evidence of its truth, but may in the case, Syllabus 2. in which such notice was returned, be contradicted by parol evidence. It would be a hardship, if this was not true. If it could not be done, it might amount to a denial of justice by forcing a party to trial, and reading against him the depositions of witnesses taken without notice to him, and which he was denied the right to cross-examine.

The evidence satisfied the court which heard it, that the return on the notice as to the defendant, O. C. Martin, was not trne; and it being the duty of the court to weigh the evidence, we cannot say that it erred in holding it sufficient to contradict the return. It is manifest from the circumstances of this case, that the sheriff did not wilfully make a false return ; that it was a mistake made in copying the notice that misled the sheriff. We must therefore hold that the court did not err in suppressing the depositions as to the defendant, O. C. Martin, unless it appear from the record, that the notice actually served upon him was substantially a copy of the original, and was sufficient to notify him when, where Syllabus 3.

and in what suit the depositions were to be taken. Notice to take depositions should indicate to the adverse party, with reasonable certainty, when, where, and in what cause the depositions are to betaken. Gales v. Miller et al. 8 Gratt. 6.

If the notice to the defendant, Martin, was substantially Syllabus 4. tially a copy of the of the original, which was a good notice, and indicated to him with reasonable certainty when, where and in what suit they were to be taken, and was not upon its face calculated to mislead him, it should be held to be sufficient. The only variance between the original notice and the purported copy which was served on the defendant, Martin, was, that the original described the suit in which the depositions were to be taken as pending in Greenbrier county, and the so-called copy described the suit as pending in Fayette county, where no suit was pending. When the defendant, Martin, received the notice he took it to his counsel for advice; and he told him to pay no attention to it. This advice, if wrong, would not avail him; but the question still recurs : Was the notice he received calculated to mislead him ? We think it was. He could not know that it was a mere mistake, and really referred to the suit pending in Greenbrier county. He could not know that the plaintiff was not trifling with him ; and that his trip to Fayette county to take depositions would not result in nothing. We think the notice served on Martin was fatally defective.

But the court suppressed the depositions as to both defendants. Was this error? The notice and return Syllabus 5. shows that it was served on both defendants. The defendant, Knajrp, does not pretend that he was not served with a true copy of the notice; and there is no evidence in the record that he was not so served, but prima facie evidence in the sheriff’s return that he was, which not being contradicted, is conclusive as to him. This was an action on a joint and several bond. Section 19 of chapter 131 of the Code provides that “in an action founded on contract against two or more defendants, although the plaintiff may be barred as to one or more of them, yet he may have judgment against any other, or others of the defendants against whom he would have been entitled to recover if he had sued them only.” •

The effect of this statute is discussed in the opinion of the court in Cohen v. Guthrie et al. infra ; and from the reasoning oí that opinion, which we approve, under this statute judgment might be rendered against one of two defendants bound in a joint and several bond, where both had been served with process in the suit. It follows then that it would have been proper to have read the suppressed depositions as to the defendant, Knapp. For if a judgment might have been rendered singly against him in the suit, evidence to show his liability would certainly be admissible, although it was in a deposition which was taken against his co-deiendant as well as himself, although it could only be read against the defendant, upon whom notice to take it was duly served. Logan v. State, 3 Bibb. 230.

We conclude therefore, that the court erred in suppressing the depositions as to the defendant, Knapp, who was duly served with notice to take them, as appears by record.

It is urged that the court erred in refusing to permit the plaintiff to show that Davis, the attorney, was pe-cuniarily responsible. The bill of exceptions show, that the plaintiff introduced J. Mays, the clerk of the court, who testified that he knew J. W. Davis, plaintiff’s attorney in the suit, and that in his dealings with his clients said attorney was prompt and punctual. The plaintiff’s attorney then asked the witness to state what was the pecuniary responsibility of Davis, attorney, &c.; and defendants objected, and the court sustained the objection, on the ground that the answer would be irrelevant. The bill of exceptions does not show that the plaintiff excepted to the ruling of the court in refusing to permit the witness to answer the question^; and we must presume that the plaintiff acquiesced in the ruling of the court. We cannot therefore consider whether the court did or did not err, in refusing to permit the said question to be answered.

It is further insisted that the court erred in refusing to permit the deed from Martin and wife to Lowry to be read in evidence, as it is claimed that the deed would have shown to the jury the motive of Martin in renewing the note. It is not set up in any of the Syllabus 6. various replications to the defendants’ second plea, that the defendants, or either of them, represented to the plaintiff that they were solvent, and by thus convincing him that the debt, nor any part thereof would be endangered by the agreement and execution of the new notes, induced him to enter into the agreement, when in truth and fact one of the parties was insolvent. We think the deed was irrelevant and should not have been admitted.

It is alleged as error that the court permitted the depositions of Newman Kincaid, Flanagan, Richards, and Conaway to be read in evidence, because, as is claimed, they were not rebutting evidence. This is an objection to the mere order of the testimony. The bill of exceptions shows that after the introduction of three witnesses the defendants “ closed for the present,” and then after a number of witnesses had been introduced by the plaintiff, principally on the question of the competency of the plaintiff to transact business, the defendants were permitted to introduce the witness, Kincaid, and others, on the same subject. Whether a plaintiff shall be permitted to introduce further evidence after the defendant's syllabus 7. fendant’s evidence is introduced is a mqtter within the discretion of the court trying the cause; and its exercise will rarely, if ever, be controlled by an Appellate Court. Clearly he is entitled to introduce evidence to rebut that of defendant. Brooks v. Wilcox, 11 Gratt. 572.

The plaintiff in error insists that the court erred in receivjug the second plea. The plea in substance is that on the 13th day of April, 1875, an agreement was made between the plaintiff and defendants, whereby the defendants each executed to the plaintiff his separate note for $825.00, the two notes amounting to the bond sued upon, and that said plaintiff then and there received and accepted and now holds the said two notes of $825.00 each for and in lieu of and in full satisfaction of the bond sued upon.

Whether this plea is good as an accord and satisfaction depends upon the question whether there was any consideration for the agreement therein set up, and therefore whether the said agreement was binding upon the plaintiff. This subject was elaborately considered by the judges of this court, in the case of Bantz & Co. v. Basnett, 12 W. Va. 772, where two of the judges took the position that if there was an express agreement made between the debtor and creditor whereby the note of the debtor past due was to be surrendered and a new note of the same character, was given by the debtor to the creditor extending the time of payment, such an agreement was founded upon a valid consideration and extinguished the'former note and any cause of action thereon. I dissented from this view, holding that such an.agreement was a mere nudum pactum. But ,the authorities seem to be uniform, that where there is an express agreement between the creditor and his partnership or joint Syllabus 8. debtor, whereby the creditor agrees to take and accept the individual note or obligation, of the partner or joint debtor, in discharge of the partnership or joint debt, such agreement is founded upon a valid consideration, and will have the effect to discharge the joint or partnership debt. Bantz & Co. v. Basnett, 12 W. Va. 772; Sheeky v. Manderville, 6 Cr. 253; Davis v. DeSaque, 5 Whart. 530; Bonnell v. Chamberlaine, 26 Conn. 481; Rayburn v. Day, 27 Ill. 47; Waydell v. Luer, 3 Denio 410; Thompson v. Percival, 5 B. & A. 925.

In Thompson v. Percival, Denman C. J. said : It is contended that the acceptance of a bill of exchange by one of two debtors cannot be a good satisfaction, because the creditor gets nothing which he had not before. The written security however, which was negotiable and transferable, is of itself something different from what'he had before ; and many cases may be conceived, in which the sole liability of one of two debtors may be more beneficial than the joint liability of two, either in respect of the parties, or the convenience of the remedy, as in cases of bankruptcy or survivorship, or in various other ways ; and whether it was actually more beneficial in each particular case, cannot be made the subj ect of enquiry.” Such an agreement to be binding must of course be free syllabus 9. from fraud. "Whether such an agreement has been made Syllabus 10. is a question of fact for the jury to determine.

It seems to follow as a matter of course, that if the creditor may be held to an agreement made with a partnership or joint debtor, by which he agrees to take the note or obligation of one partner or joint debtor, the agreement and acceptance would be equally binding, if Syllalras 1. it were an agreement to take the individual obligations or notes of each partner or joint debtor, each for his portion of thejoint debt, and release them as partners or joint debtors. We think therefore that the plea, showing as it did that the creditor agreed to release the joint debt by taking the individual notes of the two joint debtors, each for one-half of the debt, in full satisfaction of the joint debt, was a good plea, and showed a defense to the action.

For the foregoing reasons, the instructions asked by the plaintiff were properly refused, as neither of them propounded the law correctly. The instruction given by the court was in accordance with the principles above announced, and was proper. It was for the jury to find whether the contract was made as in the plea set forth • and also for the jury to say whether it was procured by fraud, or by taking an undue or fraudulent advantage of the plaintiff ;s imbecility, if they believed any such existed.

It is insisted that the deposition of the plaintiff, as it was read in argument, ought to be considered as in the recorcl, and be looked to upon the consideration of the motion for a new trial. It is no part of the record, as it is not set out in the bill of exceptions, nor in any other way made a part of the record in the case.

It is urged as error, that the court permitted the counsel for defendants to read from a paper what he called propositions of law contrary, as it is claimed, to the instruction given by 'the court. This question is not raised, as the record does not show that the court made any ruling upon the question, or that there was any exception to the action of the court.

It follows from the error in excluding the depositions as to the defendant, Knapp, that the judgment must be reversed as to both said defendants, with costs to the appellant; and this court proceeding to render such judgment, as the court below should have rendered, on the motion for a new trial, the verdict of the jury is set aside as to both of said defendants, and a new trial awarded the plaintiff, the costs of the former trial to abide the event of the suit; and this case is remanded to the circuit court of Greenbrier county for a new trial to be had therein, and to be further proceeded in according to the principles settled in this opinion, and further according to law.

The Other Judges CoNcurred.

JudgmeNt Reversed. Cause Remanded.