27 W. Va. 456 | W. Va. | 1886
Bill with injunction indorsed thereon exhibited in the circuit court of Lincoln county by R. S. Bias and others against John H. Vickers and others, to enjoin the defendants from enforcing a judgment upon a iorth-coming bond recovered by the defendant Vickers against the plaintiffs. On the motion of said Vickers, the court, on February 12, 1883, dissolved the injunction upon the ground that it had been im-providentlv awarded, and dismissed the bill with costs. The plaintiffs appealed to this Court.
The sole question to be determined here is, does the bill on its face and by its allegations present sufficient matter to entitle the piaintiffs to relief in a court of equity? In order that they may be more conveniently referred to hereinafter, I shall state in separate classes all the material allegations of the bill, which are as follows :
First. — The plaintiff Bias and the defendant Vickers entered into a contract whereby Vickers sold to Bias 200 trees of a specified kind and size, upon a described boundary of land claimed by Vickers, at one dollar per tree with the privilege of taking a larger number of such trees; the said boundary of land had not then been laid off and was not surveyed for a considerable time afterwards; Bias believed at the time of making said contract from the representations t^f Vickers that he was the owner of said land and that there
Second. — Sometime thereafter, Vickers had said boundary surveyed whereby it was ascertained that a large portion thereof, upon which a large portion of the trees so sold by him stood, was not within the boundaries so claimed by him, but of this fact Bias had no notice until he had sent his hands and teams to cut and haul away said trees under said contract; upon the discovery of these facts a new contract and arrangement was made between' Vickers and Bias by which Bias agreed to take all the trees ot the description purchased within the lands so surveyed at the price of $1.00 per tree, and Bias was to have the right to haul over the laud of Vickers any trees he might buy beyond said survey to the numbered 200; and this new contract was made before the aforesaid note became d.ue; under this last mentioned coutract Bias cut and hauled from said survey eighty trees which were all he ever got from the said land of Vickers; before all those eighty trees were cut and removed the said, note became due and Vickers instituted an action thereon and prosecuted the same to judgment against all the makers of the note in the circuit court of Lincoln county.
Third. — Before and at the time of said action, Vickers falsely and fraudulently represented that there were more than 200 trees of the kind purchased then on the land so surveyed and claimed by him reserved thereon for Bias, and by means of such false and fraudulent representations he procured said judgment on said note: up to and for some time after the trial on said note neither Bias, nor either of the other makers of the note, had any notice or information of the fraudulent character of said representations, but when Bias again went upon said land, he found for the first time that said representations were false, and that instead of 200 such trees there were only sixty-three trees of the kind purchased.
Fourth. — Since the rendition of said judgment an action of trespass has been brought in the United States district court for West Virginia by the claimants of the Smith surveys,
Fifth. — Bias has paid on said note for 200 trees $125.00 which more than pays for the eighty trees cut as aforesaid, and that he will in all probability be mulct in damages in said action of trespass for these same trees, and that by reason thereof the consideration ot said note has certainly failed to the extent of fifty-seven trees for which it was given and will probably fail as to all the balance by reason of the aforesaid actions. _ '
Sixth. — That an action against Vickers for damages would in all probability be unavailing for the reason that he has been for sometime in failing circumstances and has been selling and disposing of his property, and has been conveying a portion thereof so as to get it into the hands of his wife, and that in addition to all this Vickers is, as the plaintiffs are informed and believe, also a defendant in said action ot trespass in the .United States district court.
The plaintiffs pray that the defendants may be enjoined from enforcing said judgment, and that upon final hearing the injunction may be made perpetual and Vickers be adjudged to repay the money so paid to him as aforesaid by Bias, and for general relief.
The bill exhibits and makes part of it, the record of the1 action at law in which the judgment on the note therein men-
No. 1.' — -A plea of the tender of $125.00 for the eighty trees gotten by the defendant, Bias. This $125.00 was accepted by the plaintiff, and the court ordered it to be credited on the note.
No. 2 — Avers that after the making of the note or contract sued on, a new contract was made between Vickers and Bias by which the original contract was abandoned, and they, agreed that in consideration that Bias would pay $1.00 per tree for all trees of a specified description he could find within one mile of the river on a described boundary of Vickers’ land, he Bias would release all claim for damages that Vickers .had incurred or might be liable for on account of his misrepresentation concerning the quantity, size and location of the timber specified in the original contract, and that Vickers would give Bias the right of way free over his land ; under this new contract Bias cut and removed eighty trees which were all the trees within said boundary, and that he has always been ready to pay for said eghty trees and perform his part of said contract, but Vickers refused to permit him to haul over his (Vickers’) land, or to perform his part of said contract, to the damage of Bias $200.00, and this he is ready, to verify.
N. 3. — Avers that Vickers, just prior to the making of said note, and as an inducement to the contract, falsely represented to Bias that he owned 200 poplar, ash and walnut
The plaintiff Vickers, as I understand the record, which is somewhat confused, demurred to all of said pleas; the court sustained the demurrer to No. 2, but overruled it as to the others, and issue was joined on No. 3. The case was tried by jury in May, 1881, a verdict found for the plaintiff for $118.00, on which the judgment suoght to be enjoined in the plaintiff’s bill was entered by the court.
The amount of the execution enjoined is stated in the bill to be $609.00, thus showing that the plaintiff’s cost in prose-ting his action at law must have been $391.00, that being the difference between the debt mentioned in the said judgment and said execution.
The plaintiffs by exhibiting with and making the record in the action at law a part of their bill necessarily made the facts appearing in said record allegations of their bill to be considered along with its other allegations. Richardson v. Donehoo, 16 W. Va. 687; Simpson v. Edmiston, 23 W.Va. 675; Craig v. Sebrell, 9 Gratt. 131.
Considering then the whole facts disclosed by the allegations of the bill, including those appearing in the law record as a part thereof, the direct question is presented, do the facts alleged in the bill entitle the plaintiffs to relief in a court of equity ? So far as the facts alleged entitle the plaintiffs to relief under the provisions of sec. 5, ch. 126 of the Code, their defence is an equitable one and they were not bound to set it up in a court of law. The had the option whether they would make such defence in the action at law or subse
“ If a defendant, entitled to such plea as is mentioned in the preceding (the fifth) “ section, shall not tender it, or though he tender it, if it be rejected for not being offered in due time,he shall not be precluded from such relief in equity as he would have been entitled to if the preceding section had not been enacted. If any issue in fact is joined on such plea and the same be found against the defendant, he shall he barred in equity upon the matters alleged in the plea, unless upon such as ground as would entitle the party to relief in equity against a judgment in other cases.
It has been repeatedly decided under this statute, that if a defendant avails himself of his right to make his defence at law, and a judgment is given against him, he can not after-wards obtain relief upon the same ground in equity. Knott v. Seamonds, 25 W. Va. 99; Sanders v. Branson, 22 Gratt. 364; Penn v. Reynolds, 23 Gratt. 523.
The principle thus decided is simply a recognition of the well settled law, that where a matter is the subject of exclusive equity jurisdiction and a statute is enacted giving to a court of law jurisdiction in such matter, the jurisdiction of the two courts will be coneurrant and the statute will not be construed as taking from the equity court its jurisdiction; but if as to such matter of coneurrant jurisdiction a party litigates his lights in a court of law he will be precluded upon genera] principles of law’ from again litigating that matter in a court of equity. The foundation of this rule is the maxim, “ Interest reipublieos nt sit finis litium.” There would be no end to litigation if the party after a trial on the merits of the case in one jurisdiction could as a matter of right go into another and concurrent jurisdiction and there have his case tried de novo, and thus entirely ignore the first trial in which the same issues had or might have been tried and fully settled. In accordance with this well settled principle this Court in Poole v. Dilworth, 26 W. Va. 583 held : “ Either party, plaintiff or defendant, is estopped from alleg-
According to this.general rule, a decision upon a demurrer or issue of law, possesses the same conclusiveness as an issue upon a plea or issue of fact. In either ease the matter so decided is res judicata and absolutely conclusive between the parties in any court whether of law or equity. In examining this statute, however, it will be found that it to some extent restricts this rule as to the particular cases to which it relates, and is to that extent in derrogation of the general law and must therefore be confined strictly to the exceptions or limitations contained in or imposed by it. It excepts not only matters as to which no plea is tendered but also those as to which a plea is tendered but rejected because not offered in time. It likewise declares that: “ If an issue in fact is joined on such plea,” (that is, any plea which is not rejected by reason of its not having been filed in time,) “and the same be found against the defendant he shall be barred,” &c. This provision is not entirely plain. The words “ issue in fact,” are not necessarily the same as the phrase “ issue of fact.” An issue in fact may be either an issue of law raised by a demurrer or of fact raised by a plea; but an issue of fact can only be on a plea presenting an issue to be decided by a jury or the court. The meaning is doubtful, to say the least; and in that case it is the duty of courts to so interpret the statute as not to affect the general law. Its operation must be confined to such alteration ol the general law, and such only, as are required by its express words or clearly shown to be within the legislative intent. But it may be argued that
It seems to me, that the Virginia statute would, in every instance where a plea was rejected as bad or held insufficient on demurrer, preclude the party from relief in equity, although it might clearly appear such plea was held bad or insufficient upon grounds not affecting the defence sought to be made by it. It might be rejected as bad or held insufficient for some merely technical- error which, although good ground for disallowing it, might have no reference to the sufficiency of the matters contained and set-forth in it as a defence. Under the Virginia statute all the matters set forth in such plea, although never passed upon in the court of lawT, would be concluded, and relief on account of such matters denied in equity. In such case the party would be denied all right to test the merits of his defence either in a court of law or of equity. I, therefore, think that the omission in our statute was intended simply to relieve the party from any such possible hardship; but it was not intended to give a party whose defence had been fairly adjudicated upon the merits by a court of law, whether such adjudication-was upon an issue of law raised by a demurrer to his plea or an issue of fact, the right to have such issue of law or fact
Applying these principles of law to the case at bar, wo •find that all the matters set forth in the first, second and third clauses of the plaintiffs’ bill as hereinbefore given, are substantially the same matters contained in pleas No. 2 and No. 3, in the action at law exhibited with their bill. The matters in one of these pleas was adjudged against the plaintiffs, the appellants here, on an issue of law raised by demurrer and the facts averred in the other were tried by jury on an issue of fact and likewise found against them. If either of these 'findings, whether by the court on the de-mnrrer or by the jury on the facts were erroneous, the proper remedy would have been by writ of error in that action and not by resort to a court of equity1.
It thus appears upon the face ot the bill that all of said matters in said three clauses set forth were fully and in fact adjudicated on their merits in the action at law. It not only appears that there was a full and apparently fair trial at law of all said matters, but that there were repeated trials, continued through a period of seven or eight years, at an expense which made the costs of the plaintiff, Vickers, alone exceed three times the amount of the debt recovered by the final judgment. To permit the appellants here, after all this, to come into a court of equity and have a trial de novo as a matter of right of these same matters, would be a reproach to our jurisprudence and a burlesque upon the law.
I do not deem it proper to occupy the space that it would require to compare in detail all the allegations of the bill as to these matters with the averments of the pleas, as the preceding statement can be referred to for such comparison. Nor do T deem it necessary to express auy opinion as to the suf
This leaves for consideration the fourth, fifth and sixth clauses or sub-divisions of the appellant’s bill. It is impossible to define or classify said fifth clause. It contains three separate suggestions of defences: (1.) That Bias paid for more trees than he ever got; (2.) that the consideration as to fifty-seven trees has already failed; and (3.) that if Bias is mulct in damages for the trees he cut and removed the consideration will probably fail as to the balance by reason of said actions. It is scarcely necessary to notice these matters. Bias was credited in the action at law for the $125.00 paid by him; the next alleged defence is embraced in and concluded by the de-fence made at law; and the probability of a failure of the consideration of the note mentioned in the third, is too remote and indefinite, even if the mere prospect of a failure of consideration at some future time could be aground for equitable relief.
The fourth and sixth clauses of the bill relate to matters which were not referred to or litigated in any manner in the action at law, but they appear for the first time in this suit, and therefore rest upon a different ground from the matters hereinbefore considered. If they entitle the plaintiffs to any relief it must be, as declared in said sec. 6 of the statute, “upon such ground as would entitle a party to relief against a judgment in other cases.’’ That is, it must be upon independent grounds of equitable jurisdiction. The rule in such cases is stated and fully considered in the cases of Shields v. McClung, 6 W. Va. 80; Morehead v. De Ford, Id. 316; Slack v. Wood, 9 Gratt. 40; and Hudson v. Kline, Id. 879.
According to the settled law of this State it seems to me, that these allegations of the bill are insufficient to entitle the plaintiffs to any relief. If the fifth clause is viewed in a light most favorable to the plaintiffs’, it shows simply that they have obstructed and delayed the action at law not only until subsequent events, the bringing of the suits in the Federal court therein mentioned, developed the
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