Smith v. McLain

11 W. Va. 654, 1877 W. Va. LEXIS 56

Opinion

GREEN, PRESIDENT,

delivered the opinion of the Court:

The first question to be considered is: Ought the bill in the second chancery suit to have been dismissed, on the demurrer, as multifarious? Before considering this question, I will consider in what form Smith should have sought the relief prayed for in his bill. There are two distinct prayers in his bill, one is to set aside the common law judgment, because of the discovery of new evidence since its trial; and the other to set aside the chancery decree, in favor of the McLains against him, for the amount of this judgment, and to enjoin the sale of his real estate to satisfy that judgment. The first relief could be had only by an original bill, and not bjr a petition for a re-hearing of the chancery cause, as contended by the appellee’s counsel. An original bill is the only proper remedy to set aside a judgment obtained by fraud, accident or mistake, or to obtain relief from such judgment in the nature of a new trial of the case. Even when a final decree is obtained in that manner, the proper mode of obtaining relief is not by a bill of review, or other proceedings in the chancery cause, but by an original bill: Estill & Eakle v. McClintic et al., and Manion v. Fahy, decided at the present term óf this Court; and also Mussell v. Morgan, 3 Bro. Ch. R. 79, and Anderson v. Woodford, &c., 8 Leigh 316. The mode of effecting the second relief asked in the bill of Smith, the setting aside or correcting the decree in the first chancery cause, was not by original bill, but by a petition for a re-hearing in that cause. The court in that cause, upon a petition for re-hearing being filed, setting out the pendency of a suit in chancery to set aside the common law judgment, asking relief in the nature of a new trial, should have staid the sale and proceedings in the chancery cause, till the other controversy was determined. "Whenever an order is proper to stay proceedings in a chancery cause, the party must apply to the court upon petition in the chancery suit, and cannot file an original bill for that purpose: Dyckman & McClain v. Kernochan, 2 Paige 26; Roberts adm’r v. Cooke, 1 Rand. 121. The decree to be staid here being interlocutory, the proper mode of bringing it before the court for correction was by a petition for re-hearing. The bill of Smith ought therefore, for this reason, to have been dismissed as to all the defendants except the McLains, upon their demurrer, as no original bill for the matter set out in Smith’s bill could be filed against them. The next question is: Should the bill have been dismissed also as to the Messrs. McLain, because of its seeking, not only to set aside the common law judgment properly, but also seeking to set aside or correct the chancery decree improperly, and for that purpose erroneously bringing before the court all the other defendants in the chancery cause?

The bill ought not, on this account, to have been dismissed as multifarious on demurrer. A bill is not multifarious, which sets up one sufficient ground for equitable relief upon its face, because it sets up another which contains no equity, which could entitle the plaintiff to the interposition of the court had the suit been brought for that alone: See Varich v. Smith, 5 Paige 160; Mary v. Beckman Iron Co., 9 Paige 199; Richards v. Pierce, 52 . The proper course for the defendants was to answer as to so much' of the bill, as sought to set aside the common law judgment, and to have demurred to so much of it, as sought to correct the chancery decree and stay the sale of the lands under the chancery decree. Or if they answered as to both, they might on the hearing have asked to have the bill dismissed as to all of the defendants in the chancery cause, other than the Messrs. McClain, because of their improper joinder, and because the relief asked against them could not properly have been granted in an original suit against them for that purpose alone.

The allegations in reference to setting aside the chancery decree or staying proceedings under it, were simply impertinent, and afforded grounds of demurrer to that part of the bill, but did not give good ground of demurrer to the whole bill as multifarious. There was however another ground, on which the demurrer to the entire bill ought to have been sustained. In a bill brought to obtain relief in the nature of a new trial, the bill should allege, not only the discovery of new evidence, but also what that evidence is, that the court may see that it is material in its object and not merely cumulative, corroborative or collateral; and also that it is such that it ought to produce an opposite result on the merits. And the bill must do more than this: it must show that the evidence is such that reasonable diligence on the part of the defendant could not have secured it at the former trial: See Griffith v. Thompson, 4 Gratt. 147; Slack v. Wood, 9 Gratt. 40; Brown v. Speyers, 20 Gratt. 296; Floyd v. Jayne, 6 Johns. Ch. 479; Hendrickson v. Hinckley, 17 How. 445; Faulkner’s ad’mr v. Harwood, 6 Leigh 127; Meem v. Rucker, 10 Gratt. 506; Walton & Co. v. Hamilton, 9 Gratt. 255; George v. Strange, 10 Gratt. 499. Nor can a security rely on his ignorance of a substantial defense, arising out of transactions between the plaintiff in the common law suit and the principal, as a reason for opening a judgment against the security, unless he alleges in his bill and shows by the evidence, that he took proper' means to ascertain the true state of the case, and prepare for his defense in the common law action, or that he was prevented by circumstances, that rendered it impossible for him to take these measures. McGrew v. Tombechbee Bank, 5 Porter 547; Also, Lee v. Insurance Bank 2 Ala. 21; Powers v. Butler 3 Green. Ch. 465; Meem v. Rucker, 10 Gratt. 506; Floyd v. Jayne, 6 Johns. Ch. 479; Slack v. Wood, 9 Gratt. 40; Bierne v. Mann, 5 Leigh 364.

It is true, that in the case of Harvey v. Seashol, 4 W. Va. 115, the bill did not allege any diligence with reference to the obtaining of the receipt, which was alleged to have heen discovered since the trial, but there were allegations in the bill which the court thought excused the plaintiff from the use of diligence in procuring the receipt before the trial. The judgment was rendered against a security of a sheriff for the amount of certain receipts given to a clerk for bills, while the security was absent in Ohio, whither he alleged in his bill he had fled because of threats made by rebels to kill him aud his wife, he being an out-spoken Union man. He also alleged that he was afraid to attend the court because of these threats, and under these circumstances, judgment had been given against him during the war, and in his absence; and that after his return, in the fall of 1865, he learned for the first time that a receipt in full for these claims was in the hands ■ of a party, with whom the sheriff had left his papers ; the sheriff having also left the State. The majority of the court thought, these facts excused the allegation in the bill or proof in the case of diligence before the trial at law to procure this receipt. But Judge Berkshire dissented, being of opinion that in every case due diligence to discover the new evidence must be alleged and proven. If the allegation or proof, that reasonable diligence has been used to procure the newly discovered evidence could, in such case, or in any case, be excused, it could not in the case before us, as there are no allegations in the bill, which could be regarded as setting up any facts tending to excuse the use of such diligence ; and there is no allegation that any sort of diligence to procure or discover the new testimony is either alleged or even hinted at in the bill. The bill should therefore have been dismissed on the demurrer; but it not having been done, this Court might perhaps send the case back with leave to amend the bill, if the evidence showed that the plaintiff, Smith, had really used due diligence in the preparation of his defense in the common law case: and had an improper verdict rendered against him because of his inability to procure the newly discovered testimony, though he had used all reasonable diligence to do so before the case was tried; and further saw that the newly discovered evidence was such as ought to have produced a different result. But the evidence shows no such case; on the contrary, it establishes clearly that Smith used no sort of diligence in preparing for the trial of the common law case. The allegations of the bill are vague and indefinite, even as to what the newly discovered evidence is; they were books of his co-defendant, Lutz; but what books they were/ or what appeared from them, is not distinctly stated in the bill. From the proof we may infer, that what was claimed as newly discovered evidence, was two books of Lutz’s, kept by his agent, Shoch, and also the testimony of Lutz and Shoch. But the evidence which has been set out in the statement of the case, shows clearly that Smith well knew where these witnesses lived, and could have procured their depositions at the trial of the cause, as he has done in the chancery suit, had he used any sort of diligence; and that through them he could have learned where the books were. He had every reason to believe that some account had been kept by them of the work done by the McLains, for it was a matter of course for such account to be kept; and his failure to make any inquiry of these parties, on the subject, shows the greatest lacbes. In his deposition Smith does not pretend to allege, that he' made any effort to get the evidence of these witnesses or these books, when the common law ease was tried. He had ample time to do so, and is without any excuse for failing so' to do. It is very questionable, too, whether there would be any material change in the amount found due, were a new trial awarded. It is obvious that all the books kept by Lutz, in the possession oí Smith, have not been produced, as he states in his bill matters which appear upon the books under his control, which do not appear in the books afterwards produced and filed. The defects in the bill are attempted to be supplied in the special replication, in which he alleges the use of reasonable diligence, and his ignorance of where Lutz lived. But this special replication is not sworn to, as the bill and answer were, and ought not to have been permitted to be filed. Smith, in his deposition, does not pretend to make the allegations, which he makes in this special replication. It was not a proper case to permit the filing of a special replication, as no new matter was set up in the answer as ground for affirmative relief, such as would have formerly been set out in a cross-bill. Had this been the character, such special replication would have been proper: Code W./Va., ch. 125 §35; Vanbibber v. Beirne, 6 W. Va. 168.

Had the bill contained all the requisite allegations, and they been sustained by the proof, still the decree rendered by the court would have been erroneous; it should in such case have allowed the judgment to stand as a security for the amount, which it might turn out was actually due to the plaintiffs in the common law action; and the matters in controversy consisting of accounts between the parties, which it was proper for a commissioner in chancery to have settled, the cause should have been referred to a commissioner for such settlement; and a new trial of the case at common law ought not to have been awarded : See Bust et al. v. Ware, 6 Gratt. 50; also Gordon v. Jeffery, 2 Leigb 410; Farmers’ Bank v. Van Meter, 4 Rand. 553.

I am therefore of opinion, that the decree of the circuit court of November 16, 1874, rendered in the cause of U. D. McLain and Robert McLain v. F. M. F. Smith et al. and F. M. F. Smith v. U. D. McLain, Robert McLain et al. should be set aside and annulled, and the appellants must recover of the appellee, F. M. F. Smith, their costs about this appeal in this Court expended; and this Court proceeding to render such judgment, as the circuit court of Doddridge county should have done, doth adjudge, order and decree, that the injunction awarded the said F. M. F. Smith by C. S. Lewis, Judge of the second circuit, on the 11th day of August 1873, be and the same is hereby dissolved, and the bill of the said Smith in the second named of said causes be and the same is hereby dismissed; and that the defendants in said cause, do recover of the-said Smith their costs about said suit expended in the circuit court of Doddridge county.

Judges HaymoND and Moore concurred in this opinion.