55 W. Va. 451 | W. Va. | 1904
The Farmers’ & Shippers’ Leaf Tobacco Warehouse Com
On the 29th day of November, 1899, appellant, the plaintiff in the civil action, instituted its suit in chancery in the circuit court of said county; and, on the 23rd day of the same month, filed its bill against said Pridemore, alleging that it ■carries on the business of commission merchant, in the city of •Cincinnati, Ohio, and handles and sells leaf tobacco; that during the year 1895, it handled and sold for James Pridemore & Bro., tobacco amounting to the net sum of $1,086.10, which sum it paid to them in full, at the close of the year, and that the firm of James Pridemore & Bro. consisted of said James Pridemore and John Pridemore. Plaintiff further sa.ys that some of the shipments made to it> during the year 1895, by James Pridemore & Bro. were made in the name of James Pride-more, individually, and some in the name of Pridemore Brothers; that one of said shipments of three hogsheads of tobacco was made in the name of James Pridemore, was received by plaintiff on the 21st day of June, 1895, and was sold by it on the 14th day of August, 1895, the net proceeds of which amounted to $151.35, and for which shipment, plaintiff delivered to said James Pridemore, a statement, bearing date on the 14th day of August, 1895, and, at the same time, gave to the firm of James Pridemore & Bro. credit therefor on its books; and that the amount thereof was paid in full to said ■James Pridemore & Bro., within the' year 1895, as aforesaid. Plaintiff also alleges that, through its agent, it advanced to •James Pridemore the said sums, represented by said two. notes .sued on, amounting to $139.00; that on the 17th day of June, 1896, it received from James Pridemore two hogsheads of leaf tobacco, which it, on the 2d day of December, following, sold for the net sum of $111.55, and gave credit for that amount on the said notes, leaving a balance due thereon of $27.45, principal. It is further averred that said judgment is erroneous; that, instead thereof, plaintiff should have recovered a judgment against the defendant for said balance of $27.45 with interest; that said judgment was obtained through fraud, undue means and false testimony; that on the trial of said
It has been stated that the judgment complained of was rendered by a justice. Section 50 of chapter 50 of the Code, prescribes the “rules of pleading” for that court, as follows: “First — The complaint by the plaintiff. Second — The answer by the defendant. (3) The pleadings may be oral or in writing;, if oral, the substance of them shall be entered by the justice in his docket; if in writing they shall be filed by him and a reference to them be made in the docket. In either case if the parties appear and the defendant make defense thejr shall be made up on the return day of the summons, unless good cause be shown to the contrary. (4) The answer of the defendant may contain: First — A denial of the complaint or some joart thereof; second— a statement of the facts constituting a defense or counter claim. (5) Such pleadings are not required to be in any particular-form, but must be such as to enable a person of common understanding to know what is intended. (6) Either party may except to a pleading of his adversary when it is not sufficiently explicit to be understood, or it contains no cause of action or defense. (7) If the justice deem the exception well founded he shall order the pleading to be amended, and if the party refuse-to amend, the defective pleading shall be disregarded. (8) In. an action or defense founded upon an account, note, or other-writing for the payment of money, it shall be sufficient for the party to deliver the account, note, or other writing-to the justice and to state that there is due to him thereon from the adverse party a specific sum, which he claims to recover or set-off in action. * * * (10) The pleadings may be amended at any time before the trial, or during the-trial, when by such amendment substantial justice will be pror moted. If the amendment be made during the trial and it be-shown to the satisfaction of the justice by the oath of the opposite party, or his agent or attorney that a continuance of the-cause is necessary in consequence of such amendment, a continuance shall be granted. * * * (11) The justice may, at any time before the trial, require either party at the request of’
It is alleged and proved by plaintiff that it did not know, and had no means of knowing, that defendant had the said statement for $151.35, bearing date August 14, 1896, until he offered it as evidence on the trial; and upon this ground with others, it asks in this cause that said judgment be set aside, and that a new trial of the action be granted to it. It is shown that McGee, the agent of plaintiff, was conversant with the transactions between Pridemore & Bro., and James Pridemore, and plaintiff; that he knew before, and at the time of the trial, that Pridemore had a statement relating to the tobacco; that he (McGee) was present with plaintiff’s attorney, Wilkinson, at the trial; and that a continuance of the ease had, before that time, been granted to enable the company to procure evidence with which to. contest the defendant’s claim. Plaintiff could have demanded that the pleadings of the defendant be filed on the return day of the summons, and, if insufficient, could have excepted thereto. It could have demanded that the account of defendant against the plaintiff be filed with the justice with a complete statement of the items thereof. Before the trial, at plaintiff’s request, it was the duty of the justice to require the defendant to file a complete statement of the items of his account, upon which he demanded judgment. The plaintiff seems to have been satisfied with such pleadings and notice of defense as defendant had filed before and at the time of the trial. It demanded no other or better notice by written or oral statement from defendant; but went to trial before a jury, and submitted its evidence, upon the whole case. Under the statute above cited, if the plaintiff had been surprised, during the trial, by the production of the account in question by the defendant, and it had been then shown to the satisfaction of the justice by the oath of the plaintiff, or its agent or attorney, both of whom were present, that a continuance of the cause was necessary, in consequence thereof, it would have been the
Appellant contends that it should have the judgment aforesaid set aside, and cites Marshall v. Holmes, 141 U. S. 589, which, among other things, says: “That a trial was had of the suit No. 607, and the said Maynr introduced evidence of the existence of a letter from your petitioner to the said Boyd authorizing him, the said Boyd, to make a contract by which her lien as lessor on the crops produced by the several defendants and other tenants on said plantation should be waived in favor of the said Mayer or of others, as furnishers of supplies to said tenants; that upon such evidence so offered, and of the existence of which the petitioner could not possibly be aware and of which she had no. knowledge until subsequent to the trial, judgment was rendered against her in said suit and in
petitioner
have general and equitable relief.” And, at page 596, the court further says: “According to the averments of the original petition for injunction filed in the state court — which averments must be taken to be true in determining the removability of the suit — the judgments in question would not have been rendered against Mrs. Marshall but for the use in evidence of the letter alleged to be forged. The'•ease evidently intended to be presented by the petition is one where, without negligence, laches or other fault upon the part of petitioner, Mayer has fraudulently obtained judgments which he seeks, against eon-
It will be at once observed that, in the case above cited, the letter was alleged to be a forgery, and that plaintiff in that case had no knowledge, or means of knowledge thereof, until after the trial of the case, and until after the time had elapsed in which a motion for a new trial could have been made. The case before us is very different. Here the plaintiff had its hooks, and its witnesses, before and at the tiihe of the trial. By the use of due diligence it could have had its evidence before the jury and justice at the trial of the action in which the judgment complained of was recovered against it.
Plaintiff also cites Bloss v. Hull, 27 W. Va. 508, as follows: "A new trial wiil not be granted on the ground of newly discovered evidence, when it goes merely to impeach the testimony of a witness at a former trial, nor to let in cumulative evidence as to matter which was principally controverted at the former trial; but if the newly discovered evidence is sufficient to utterly destroy the former testimony by showing that it was entirely false or founded on perjury, then a new trial should be granted. The rule, in this respect is the same both in courts of equity and at law. But where the testimony thus discovered relates to a fact which was in issue and supported by evidence in the former trial it must he of a conclusive character, such
As a general mle, a bill for relief based on perjured testimony given at the law trial, or on false or forged documentary evidence introduced there, will not be entertained; and the allegation that the complainant was surprised by the perjury or forged evidence does not change the rule. 11 Encjr. PI. & Pr. 1183. It is a rule of law, on the subject of new trials, that a party going voluntarily to trial goes at his jperil, and he cannot have a new trial merely to give him an opportunity of impeaching the testimony of a witness of which he was apprised, or could have been apprised before hand, and of the very purpose for which he was to be called. He must, at least, show that he had since discovered testimony of which he had no knowledge before the trial. Woodworth v. Buskerk, 1 Johns. Chy. 432; Gott v. Carr, 6 Gill & J. 309. Here the plaintiff could have been apprised before and at the time of the trial of the action before the justice, of the very purpose for which
There is no allegation of fraud, accident, mistake, or other adventitious circumstances, in the plaintiff’s bill, whereby it was prevented from producing its proof in defense of said account, on the trial before the justice. Failure of proof upon the trial at law will not, in the absence of fraud, accident, mistake or other adventitious circumstances, warrant a court of equity in granting relief against a judgment. Thus, where complainant asks an injunction against a judgment, alleging in his bill that he is now able to prove the matter of his plea in defense of the action at law, which .he was unable to prove at the trial, but does not suggest fraud, accident, mistake or other circumstances as the cause of such failure of proof, the injunction will not be allowed. High on Inj. ch. 3, .section 168; Shields v. McClung, 6 W. Va. 79; Hogg’s Eq. Pr. 472, 473. There is no allegation in the bill that plaintiff applied for, or was refused, an appeal from the judgment. No sufficient reason is averred therein why it did not make such application. If sufficient relief could have been had by an appeal from the judgment, but the party aggrieved has been negligent in prosecuting his appeal, and has thereby lost his remedy, he will be denied relief by injunction against the judgment, so, too, a judgment debtor who has lost his remedy by appeal by reason of a defect in his proceedings, will not be allowed to enjoin the judgment. Long v. Smith, 39 Tex. 160. In the case of Brown
The decree is therefore affirmed.
Affirmed.