39 W. Va. 422 | W. Va. | 1894
On the 2d day of October, 1891, a general creditor’s suit was pending in the Circuit Court of Kanawha county in the name of C. C. Lewis, receiver, etc., against James M. Laidley et al. The last order therein had been made over four years previously at the instance of the defendant James M. Laidley, committing the cause to a commissioner of the court to make certain statements of accounts in relation to the sales of the defendant’s property and application thereof on his debts. Salina C. Mason, the appellant, was a j udgment-lien creditor, party to this suit. At a special term of court then being held an order was entered on motion of the nominal plaintiff dismissing said suit without the knowledge or consent of said Salina C. Mason. On the 25th of January, 1892, an order was entered on motion of the plaintiffs reinstating said suit on the docket as inadvertently dismissed. And on the same day an order^was entered on motion of the complainant setting aside the order reinstating the suit. On the 15th day of December, 1892, the said Salina C. Mason filed her petition, and on her motion said suit was reinstated on the docket and ordered to proceed in her name as plaintiff in lieu of C. C. Lewis, receiver, etc. On the 2d day of January, 1893, the defendant James M. Laidley had the last above order set
This suit was not stricken from the docket under the four years’ rule by the court. If it had been, it would have raised the same question, which was left undecided by a divided court in the case of Miltbank v. Ingersoll, 29 W. Va. 396 (1 S. E. Rep. 575).
The question is here presented whether the four orders or either of them, entered October 2, 1891, January 25, 1892, January 2, 1893, and January 5, 1893, are erroneous, appealable and prejudicial to the rights of appellant, section 7, c. 139, of the Code provides:
“Whether the suit be so brought (that is, on behalf of all lienors) every such lien holder, whether he be named as a party to the suit or not, or whether he be served with process therein or not, may present, prove, and have allowed any claim he may have against the judgment-debtor, which is a lien on such real estate, or any part thereof, and from and after the time he presents any such claim he shall be deemed a party plaintiff in such suit.”
This enactment, affecting the remedy and not the right; applies to all such suits, whether instituted before or after its passage. In Billmeyer v. Sherman, 23 W. Va. 662, Judge SnydeR says: “After an order of reference, the plaintiff in such bill ceases to have absolute control of it, and it can not be dismissed by him without the consent of the other creditor.” To hold otherwise would allow the defendant-debtor to collude with the nominal plaintiff in controlling the litigation, and in this manner oftentimes greatly hinder, delay and defraud other lien-creditors of their debts.
The order entered by the Circuit Court on the 2d day of October, 1891, on motion of the nominal plaintiff was erroneous. The order entered on the 25th day of January, 1892, on motion of George S. Couch, attorney for plaintiffs, was proper, as correcting the error committed by the
Such being the status of these orders, the order entered by the court on the 15th day of December, 1892, reinstating said suit and ordering it to proceed in the name of the appellant, being within three terms (regular) of the last order of dismissal was proper and should not have been set aside and held for naught on motion of the defendant, James M. Laidley, on the 2d day of January, 1893. Each of these erroneous orders, being final, if not set aside bythe Circuit Court on motion under section 11, c. 127, of the Code, or uudor chapter 134 of the Code, are appealable to this Court within two years from the date thereof. Sections 1 and 3, c. 135, of the Code.
Had the appellant thé right to file a bill of review to correct such erroneous orders ? It is the settled law of this state that a bill of review will lie to correct errors of law apparent on the face of the record. Nicholas v. Heirs of Nicholas, 8 W. Va. 174; Amiss v. McGinnis, 12 W. Va. 371. In the case of Millbank v. Ingersoll, supra, a. bill of review
In this'case there is no question but that the Circuit Court erroneously dismissed this suit three several times without the consent of this appellant; twice on motion of the nominal plaintiff, and once on motion of the defendant. These errors were apparent on the face of the record, and the Circuit Court not only had the right, but was in duty bound, to correct them. The two first the Circuit Court did correct by proper orders to that effect. The third, however, stands uncorrected, and, if the term of court was ended at which it was entered at the time the bill of review was tendered, it should have been entertained; but, if the term had not then ended, it should have been entertained as a petition in the nature of a bill of review. Hyman v. Smith, 10 W. Va. 298. The defendant James M. Laidley had no right to have the suit dismissed while it was pending at his instance before a commissioner, as it was his laches that the order of reference -was not executed.
Was the appellant prejudiced by'these errors ? She certainly was, because the law made -her a plainliffin the suit and gave her the right to prosecute it for her own benefit-The orders deprived her of her legal right, as much so as to dismiss her suit, she being the only plaintiff, on motion of a stranger. As the merits of her case or the relief she may
For the reasons aforesaid, the order of the Circuit Court entered on the 2d day of January, 1893, on motion of James M. Laidley, defendant, is reversed and annulled at his costs ; and the order eutered on the 15th day of December, 1892, is affirmed; and this cause is remanded to the Circuit Court of Kanawha county to be proceeded in to a final hearing and determination in the name of Salina C. Mason, plaintiff, according to the rules of law and principles of equity.