48 W. Va. 453 | W. Va. | 1900
Bodkin & Cutlip filed their bill in the circuit court of Braxton
The facts are as follows': Plaintiffs began to run a store bill with defendants in 1890. In 18'91, they made a settlement and plaintiffs executed their note for a balance of one thousand two hundred dollars. In 1892, they made another settlement, and plaintiffs executed their note for a balance of one thousand seven hundred and forty dollars and eighty-one cents, including the one thousand two hundred dollar note. In 1895, in a suit instituted by L. D. Stoustreet to subject the property of Bodkin and Cutlip to the payment of their debts, this note was presented, and on May 1, 1895, a decree was entered for the satisfaction of the balance due there’on. In September, 1897, the present bill was filed seeking, on the grounds of fraud and mistake to go behind such decree, settlement and notes, and show errors in the page additions of the account on which they were founded amounting to the sum of three 'hundred and ninety-four dollars and five cents. The defendants insist on laches, the bar of the statute of limitations and res adjudicata. The plaintiffs relying on mistake and fraud ask that their bill be treated as a bill of review on the grounds of after discovered evidence. Waiving all technical objections to this bill as-a bill of review and considering the merits, it is impossible to sustain it. The evidence on which the plaintiffs rely could have been discovered by the exercise of reasonable diligence prior to the decree on the note. Wethered v. Elliott, 45 W. Va. 436. “The matter relied on must not only be new but it must be such as the party by the use of reasonable diligence could not have known. Dingess v. Marcum, 41 W. Va. 757. In this case the matter relied on arose merely from the negligence of the plaintiffs in not looking after their business. They say they relied on the defendants to keep correct accounts. This does not excuse their negligence, so as to afford them relief in equity, which favors the vigilant and not those guilty of laches in their business transactions. There is nothing to show butthatthe plaintiffs had every opportunity both before and after the settlements and prior to the decree to examine the accounts kept by the defendants. On the contrary in their two settle
Hence, the decree must be affirmed.
Affirmed.