92 W. Va. 204 | W. Va. | 1922
This suit was brought for the purpose of setting aside a decree entered in the chancery cause of E. D. Fulton v. Joseph Ramsey, Jr., et als., in the Circuit Court of Braxton county, upon the ground that said decree was a fraud upon the rights of the plaintiff in this suit. A demurrer to the plaintiff’s bill and amended bill was sustained, and he prosecutes this appeal.
The facts giving rise to the litigation are fully set up in the bill and amended bill. In the year 1901 William Cren-nell, Jr., was a mining engineer living in the State of Pennsylvania, and the defendant Elwood D. Fulton was a lawyer
In 1903 Crennell called upon Fulton for a settlement of their matters under the contract. Up to this time, while
“NOW, THEREFORE, in consideration of the waiver of the said William Crennell, Jr., plaintiff, in the cause so pending in the Braxton Circuit Court, to be evidenced by an order to be entered of record in said cause, and without in any manner recognizing or conceding the claims of the said Crennell, or any of them, and reserving the right to make full defense thereto to the same extent as if this writing had not been executed, I, the said Elwood D. Fulton, hereby assign and transfer- to the said William Crennell so much of the moneys claimed by me in the suit in equity instituted by me as plaintiff against Joseph Ramsey and others in the Circuit Court of Braxton County as may be sufficient to satisfy any decree that may be pronounced in favor of' the said Crennell in either of the two suits aforesaid so- instituted by
“It is further understood and agreed that this writing shall in no event be so construed as to prejudice me in relation to any jurisdictional question which may be involved in the said suit instituted by the said Crennell in the Circuit Court of Braxton County.
“WITNESS my hand and seal this 18th day of February, 1910. ‘‘Elwood D. Fulton. (Seal) ’’
At the time this paper was executed and delivered by Fulton to Crennell, as appears from the face of the paper, a conclusion had not been reached in either of Crennell’s suits against Fulton, that is to say, the one pending in Fayette County, Pennsylvania, and the one in Braxton County, West Virginia, for the purpose of determining the amount due Crennell by Fulton upon an accounting. Fulton denied any liability whatever to Crennell befeause of the matters set up in these suits. The parties, it appears, by mutual consent, agreed to litigate the questions in the Common Pleas Court of Fayette County, Pennsylvania, in which county both of them resided. It is shown by the bill that in this litigation Fulton refused to make disclosures required of him by the court, and that he was attached for contempt for such failure, and then on more than one occasion prosecuted writs of error to the appellate court contesting the right to so attach him. This litigation was persistently carried on, however, by Crennell until the year 1917, at which time a decree was finally entered in his favor for the sum of $142,819.55, with interest thereon from the first of May, 1916. It was further decreed in that suit that Crennell should have the right to
• In the suit brought by Fulton against the Little Kanawha Syndicate and others, for the purpose of enforcing the collection of the balance remaining unpaid on the lands sold by him to that syndicate, a decree was entered in March, 1909, finding that there was due Fulton the sum of $371,-922.86, and decreeing the lands to sale in satisfaction thereof. All the -members of the Little Kanawha Syndicate and most of the other defendants to that suit were non residents of the State of West Virginia, and they were proceeded against by order of publication. The decree above referred to was a decree in rem against the real estate. Subsequently Fulton asked the circuit court of Braxton County to enter a personal decree against Ramsey and his associates, upon the theory that they made a personal appearance in the case, and the court below rendered such a decree. Ramsey and his associates appealed to this court from that personal decree, and the same was reversed here upon the ground that the appearance of Ramsey and his associates was only a special appearance. As before stated, Ramsey and his associates had resold these lands to various other parties, and they were proceeded against by Fulton in his suit. When Fulton executed the assignment above quoted to Crennell, Crennell immediately gave full notice thereof, not only to Ramsey and his associates, managers of the Little Kanawha Syndicate, but to all of the parties who had become interested in the lands since that time, and the bill alleges that each and all of these parties were fully and completely notified of the transfer by Fulton to Ramsey if the paper above quoted constitutes an assignment. Notwithstanding the fact that these parties all had full knowledge of Crennell’s rights, in the year 1912; they made a settlement with Fulton of the controversy involved in his suit against the Little Kanawha Syndi
The contentions of the demurrants are that the paper writing above set forth did not confer upon Crennell, either in law or in equity, the title to any, part of the debt which the Little Kanawha Syndicate owed to Fulton, for the reason that neither the amount of the debt claimed by Fulton, nor the amount of the debt claimed by Crennell from Fulton were ascertained and determined, wherefore the assignment is void for uncertainty. They further say that Crennell has been guilty of laches in bringing this suit; that the decree complained of was entered in 1912, and this suit was not brought until 1917, five years later; that if Crennell had any cause of complaint he should have asserted it before he filed his bill in this case. And it is further insisted that even though Crennell would be entitled to relief under ordinary circumstances, he is entitled to no relief here against the Little Kanawha Syndicate because its managers are all non residents of the State of West Virginia, and no personal service can be had upon them, wherefore it would be wrong to set aside the decree dismissing the suit to which they were defendants upon substituted service.
The principal contention is that the paper writing executed by Fulton to Crennell in 1910 is not in fact an assignment; that it conferred upon Crennell no title, either legal or equitable to the debt claimed by Fulton against Ramsey and his associates. This contention is based upon the fact that at the time this writing was executed and’ delivered, the amount of the indebtedness of the Little Kanawha Syndicate to Fulton was undetermined — in fact it was denied that any such indebtedness existed, and this is also true of the claim of Crennell against Fulton — because of which it is asserted no valid assignment could be made. Both of these claims existed in fact at the time the assignment was made. The only difficulty was that the amount had not been determined
We do not find -that there is any merit in the contention that the plaintiff in this case is barred by laches. It is true the decree sought to be set aside was entered in the year 1912, and that this suit was not instituted' until 1917, but it must be borne in mind that Crennell did within a very short time after the entry of the decree make a motion to vacate it, and the proceedings on that motion were pending, until finally determined in this court upon appeal in 1915. During not only that time, but the two years following, vigorous efforts were being exerted by Crennell to establish the exact amount of his claim against Fulton, and he succeeded, in doing this in the year 1917. He thereupon immediately brought this suit without waiting for a determination of the appeal taken by Fulton to the Supreme Cuort of Pennsylvania. None of the parties interested in this land were in any way prejudiced by the fact that Crennell delayed in bringing this suit. If he had intervened at the time he got the assignment and asked then to be made a party plaintiff, his rights could not have been determined any earlier than they were actually determined.- The parties had full notice of his assignment,, and they likewise had full notice that he was vigorously prose-
There is no merit in the contention that Crennell cannot .have the decree set aside for fraud in this suit on the ground -that Ramsey and his associates are non residents, and can ■only be reached by order of publication. They were never in the suit originally except by order of publication, and •when the decree is set aside and the suit allowed to be prosecuted by Crennell’s administrator they will'not be in the suit
Our conclusion is to reverse the decree of the Circuit Court of Braxton County, overrule the demurrer .to the hill and amended bill, and remand the cause for further proceedings.
Reversed; Demurrer overruled; Remanded.