Armstrong v. Wilson, 19 W. Va. 108

19 W. Va. 108 | W. Va. | 1881

Johnson, PRESIDENT,

announced the opinion of the Court:

The only error here assigned is, that the court erred in dissolving the injunction and dismissing the cross-bill without first correcting the said former decree, and in some form giving petitioner credit for the usurious and unlawful interest charged. In Baker v. Oil Tract Company, 7 W. Va. 454, it was held, that in a suit or proceeding by foreign attachment in equity to collect the price of two oil-tanks, it is competent for the defendant to plead and rely upon a breach of warranty or to the quality of the material of the oil-tauks in reduction or abatement of the price; and when such defence is pleaded and relied on in the answer, it is unnecessary to file a cross-bill for that purpose. Also that it is not error in the circuit court to refuse to allow a defendant to file a cross-bill praying a suspension of further proceedings in the original suit, until an account prayed in the cross-bill can be taken, when the filing of the cross-bill has been unreasonably delayed, and especially where the complaint in the cross-bill fails to state any reason for such delay. Those principles apply to this cause; and it was not error to dismiss the cross-bill, because the same defence set up there was made in the answer, and also because the filing thereof was unreasonably delayed without any reason given for such delay.

But there was another trouble, as to setting up of the defence either in the answer or in the cross-bill. The decree pronounced, before either the answer or the cross-bill was filed, is a consent-decree. This Court has held, that after the close of the term, at which a consent-decree was entered, it can never be set aside, except by consent, by any proceedings in the cause, though it had been entered by mistake or by the fraud of one of the parties. Manion v. Fahy, 11 W. Va. 482; Rose & Co. v. Brown et ux., 17 W. Va. 649. A consent-decree may be annulled on an original bill filed for the purpose, when it was procurred by' fraud or was entered by mistake of one or both of the parties differently from what it should have been entered. An original bill is necessary and proper to annul such consent decree whether the decree be final or interlocutory. Manion v. Fahy, supra. It is not pretended, that the cross-bill filed in this cause could be considered an original bill for the purpose of setting aside the consent-decree theretofore entered in the cause. But before filing such original bill for the purpose of setting aside such consent-decree it would be well for the party to en-quire, whether the defence pleaded in the answer and cross-bill, to wit, the usury and the fraud, could avail him, he having taken no steps whatever to defend himself at law. The question does not arise in this cause, but the following authorities are upon the subject: Brown v. Swann, 10 Pet. 497; Shields v. McClung, 6 W. Va. 79; Knapp v. Snyder, 15 W. Va. 434; Alford v. Moore’s adm’r, Id. 597.

The decree of the circuit court of Taylor county rendered in this cause on the 12th day of March, 1878, is affirmed with coss and $30.00 damages.

Judges Haymond and Green Concurred.

Decree Apeirmed.