55 W. Va. 4 | W. Va. | 1904
Thomas F. Law, as administrator of the estate of F. E. Law, deceased, instituted, in the circuit court of Lewis county, his suit in chan eery,, against Marie E. Law, widow, and Adda Law, Thomas F. Law and J. W. 0. Law, children and heirs at law of said F. E. Law, deceased; and Joseph Evans and Howard Neely, trustee. The bill was filed at the June Buies, 1899. The object of the suit was to subject to sale certain lands, owned by F. E. Law, at the time of his death, to the payment of his debts. The indebte-clnegs of the decedent was ascertained; a
The bill of review further avers that, in said original suit, George Woofter.was, at the rules, appointed guardian ad litem for the said defendant J. W. 0. Law, who was a minor; that said minor, by his said guardian ad litem, filed an answer to the original bill; and that, on the 28th day of June, 1899, a decree of reference was entered in said cause, in which decree, it is recited that the “adult defendants appeared and demurred to the bill, in which demurrer the plaintiff joined, and the court, having considered the questions arising on said demurrer, overruled the same. Thereupon the said demurring defendants waived their right to answer the bill. And the cause came on to be heard upon the bill taken for confessed against said adult defendants, exhibits, answer of said infant defendant by his guardian ad litem, process, and was argued by counsel.” On consideration of all of which, the said cause was referred to W. J. Smith, commissioner, who was directed to ascertain and report certain matters specified in the decree. It is further averred that, on the 17th day of October, 1899, a further decree was pronounced in said cause, the same having been on that day heard upon the papers, read on a former hearing, former orders and decrees; and, upon the report of Commissioner W. J. Smith, filed on the 14th day of October, 1899: “Upon the waiver of notice from said commissioner, by W. W. Brannon, the only attorney of record, to which report there was no exceptions” ; and thereupon the estate of F. E. Law was decreed to pay to its creditors the several sums therein mentioned; and it was ascertained by said decree that the age of the widow of said E. E.
The bill of review further shows that a sale of said lands was afterwards made to said M. F. Law; that W. 0. Law signed the purchase money notes given therefor, as surety; that by decree made and entered in said cause on the 25th day of June, 1901, said sale was confirmed; that the cause was then referred to a commissioner to ascertain and report the gross sum, in lieu of dower to which said Marie E. Law was entitled out of the proceeds of the sale of each of said tracts of land; that by decree made and entered in said cause on the 29th day of October, 1901, it was “adjudged, ordered and decreed that the said Marie E. Law is entitled to the sum of $702.33, as a gross sum in lieu of her dower, from the proceeds of the sale of the tract of one hundred and five acres of land, heretofore sold under decree herein.”
Plaintiff in said bill of review alleges that she is aggrieved by the said decrees of October 17, 1899, and October 29, 1901, respectively; that she ought not to be bound by either of them; that both of said decrees are erroneous, and should be reversed; and for assignment of error therein, she further alleges that said decrees show upon their face that said cause, in which the same were pronounced, was heard upon the plaintiffs bill therein taken for confessed as to her and the other adult defendants thereto; that she was not represented by counsel therein; and that no one had authority to bind her. She avers that, although it appears that she demurred to the bill, -as a matter of fact, that statement is untrue, and that such appearance on her behalf was unauthorized and fraudulent; and that she is not bound by the allegation in the plaintiff’s bill that she was willing to accept a
The bill prays that said decrees of October 17, 1899, and • October 29, 1901, respectively, be reviewed and altered to the extent of decreeing to her, as the widow of F. E. Law, deceased, dower in kind in the said tract of one hundred and five acres of land, instead of the value of such dower in money; that all proper orders and decrees in respect to said dower be entered; and for general relief.
To this bill of review, the defendant, M. L. Law, on the 28th day of October, 1902, filed his demurrer, assigning therein several reasons why the same should be sustained. No appearance of any kind was made to said bill by any of the other defendants' thereto. On consideration thereof, the court sustained the de
Plaintiff, Marie B. Law, was granted an appeal from that decree, and complains that the circuit court erred in sustaining said demurrer; and in refusing to allow said proposed amendments.
The decrees complained of are based upon the bill, taken for confessed, as against Marie E. Law, and her adult co-defendants. The bill of review is not for newly discovered evidence. It 'would not lie for that cause to a decree taken pro confesm. Camden v. Ferrell, 50 W. Va. 119; Hogg’s Eq. Proc. Vol. I, s. 210. If the present bill can be maintained for any reason, it must be on the ground that there is error of law apparent on the face of the said decrees, such as appear in the decrees themselves; the opinion of the court; or from the pleadings in the cause, and exhibits filed therewith; or from such error as arises from facts, either admitted by the pleadings, or stated as facts, settled, declared, or allowed by the decree. Neither the depositions nor the evidence in the cause can be looked to, to show error. Dunn v. Renick, 40 W. Va. 349; Hogg’s Eq. Proc., supra, s. 211.
What errors of law are apparent on the face of the decrees? The court had jurisdiction of the subject matter of the suit in which the said decrees were made and entered. Code, ch 86, s. 7. Process had been issued therein, but whether or not service thereof had been made upon the defendants, or any of them, the record does not state. The infant defendant answered the
Therefore, the demurrer to plaintiff's bill, treated as a bill of review, there being no error of law apparent on the face of the record, was properly sustained. Plaintiff, however, asked leave to amend her bill, as hereinbefore stated. Such amendment would not contradict any recitals in the record. It does appear that the cause was heard upon process, but it is not stated that the process had been served.
If the proposed allegations be true, the plaintiff had the. right to aver and prove them in some appropriate proceeding. The learned judge who decided the case, evidently thought that plaintiff had the right to maintain an original bill for the purpose of impeaching the decrees complained of, for fraud. Such seems to have been the opinion of this Court in the case of Manion v. Fahy, 11 W. Va. 491. It is there said: “If a decree has been procured by fraud, .discovered after the decree is entered but before it is enrolled, the proper mode of correcting it by the English practice is neither by a petition for a re-hearing nor by. a supplemental bill, in the nature of a bill of review, but the
The plaintiff may of right amend his declaration, or bill, at any time before appearance of the defendant, or after such appearance, if substantial justice will be promoted thereby. Code, chapter 125, section 12. Plaintiff had filed her bill in the clerk’s office at rules. Defendant, M. F. Law, appeared in court and interposed his demurrer thereto as a bill of review. If insufficient or improper as such bill of review; but sufficient, or capable of being made so, by proper amendment, for the object sought, it was error in the court to refuse such amendment; and it was also error to dismiss the bill, in Sturm v. Fleming, 22 W. Va. 404, it is said: “The name and form are immaterial; substance is all that is required. . In Virginia the practice of courts of equity, which is the rule of practice in this State, allows the greatest liberality with respect to pleadings.” In Riggs v. Armstrong, 23 W. Va. 760, it is held: “It is the disposition of courts of equity to regard substance rather than mere form; hence in this case a bill was filed as a cross-bill which could not be sustained as such, but having all the elements of an original bill, was held to be sufficient as an original bill and treated as such.” Skaggs
If then, the remedy in snch ease is by an original bill, and the bill of review, filed in this canse, conld have been properly amended, and then treated as an original bill for the purposes sought, it is plain that the court should have permitted the amendments, and then treated the bill, so amended, as an original bill, without dismissing the plaintiff, to do again, what she had done, and then and there proposed to do. The bill should have been amended and remanded to rules to have been there properly matured for hearing.
Appellant, in her bill, and her counsel in his brief, fully acquit and exonerate W. W. Brannon, the attorney, who assumed to act for her in the circuit court, from intentional wrong in.the premises; but this disavowal on their part is in no way to be taken or treated as a‘waiver of any of the legal rights of appellant in the cause.
For the reasons stated, we are of opinion that there is error in the said decree of October 28, 1902. We therefore reverse and set the same aside, and remand the cause to the circuit court of Lewis county to be therein further proceeded with, according to the views herein expressed, and further in accordance with the rules and principles governing courts of equity.
Reversed.