Ferrell v. Allen

5 W. Va. 43

• Court: West Virginia Supreme Court
• Decided: July 15, 1871
• Status: Published

Opinion

Maxwell, J.

The appellants filed their bill in the circuit court of Monongalia county to enjoin a judgment at law, obtained against them in the said court; and to obtain a new trial or re-hearing of the cause in which the judgment was rendered. The grounds on which the parties seek relief in equity are fully set out in their bill, to which there was a demurrer sustained by the court. The ease made in the bill shows matter sufficient to have defeated a recovery at law if the defense had been made there, but as appears from the bill, the defense was not made at law because the matter of defense was not discovered until after judgment, and until it was too late to move for a new trial. The bill also shows a good and sufficient reason why the matter of defense was not discovered in time to be set up in the action at law. Armstrong vs. Hickman, 6 Munford, 287; Mason vs. Nelson, 11 Leigh, 227; Harvey vs. Seashol, 4 W. Va., 122.

The decree sustaining the demurrer and dissolving the injunction and dismissing the bill, will have to be reversed, with costs to the appellants; the demurrer to the bill overruled; the injunction reinstated and the cause remanded, with leave to the defendant to answer the bill, if desirous to do so.

The other Judges concurred.

Decree Reversed.