McCoy v. McCoy

29 W. Va. 794 | W. Va. | 1887

GREEN, Judge :

It will be seen from the statement above, that the propriety of the decree of October 6,1885, depended principally upon what was the real interest of Lucinda Bexroade in the residuary estate of Gen’l McCoy. Her interest had been sold, the bill alleges, to the plaintiff with a guarantee by her, that said interest was not less than one tenth of the estate ; and the judgment enjoined was obtained by her on Benjamin McCoy’s bonds, given for part consideration for such interest. The injunction was granted, principally on the ground that it had not been ascertained, what her interest was, whether one tenth, one twentieth or one fiftieth, as it depended largely on the construction of Gen’l McCoy’s will and upon the number of his kin living at the time of his death and at the time of the death of William McCoy 3rd, and their relationship to said Gen’l McCoy. The first inquiry then will be, whether Benjamin McCoy is not by the decree of October 23,1880, in McCoy's Ex'r v. McCoy's Devisees, es-topped from alleging or proving, if he could, that the said interest was less than the one tenth, which Lucinda Rex-roade guaranteed it to be. One of the principal objects of that suit was to ascertain the interest of each of the devisees under a true construction of the will. After the cause had been pending for years and been carried to the Court of Appeals, all the decrees in it were reversed, simply because many proper and necessary parties had not been brought before the court. Everything that had been done in the case up to that time, was set aside and annulled because of this defect in the proceedings, (9 W. Va. 443) and the cause was remanded to the Circuit Court of Pendleton county. In the meantime one of the devisees had purchased all the interest of all the devisees except a few, who under one construction of the will, were supposed to own one three hundred and sixtieth part of the estate to be distributed among the residuary devisees. This matter was referred to a commissioner, who so reported and ascertained the amount of the interest of each of the devisees, when William McCoy made these purchases ; and on the facts before him, not reported to the court, his conclusion was, that the said William McCoy owned all the interest of all the devisees except nine, named by him, whose aggregate interest was found by him to be only one three hundred and^ sixtieth part of the residuary estate. The value in money of each of these interests was reported; and the report shows the principle, which he adopted in his calculations. If this principle had been applied in calculating Lucinda Rexroade’s interest (though it was not, as her interest was one of those owned by William McCoy) it would have shown that interest to be just one tenth, as the bill alleges, she guaranteed it to be, when sh'e sold it to Benjamin McCoy.

If this was a conclusive judgment determining as between her representatives and Benjamin McCoy, a party to said first cause, that Lucinda Rexroade’s interest was one tenth, it would tend to show the justice and propriety of the decree appealed from. I have therefore examined this point, though it was not relied on by the defendants below nor apparently by their counsel here. I have concluded, that this decree did not operate as an estoppel to the parties to this cause ; and I will now give the reasons which have led me to this conclusion.

I regard it as settled by our decisions, that a point once adjudicated by a court of competent jurisdiction, however erroneous that adjudication, may be relied upon as an estop-pel in any subsequent collateral suit in the same or any other court in law or in chancery, when either party or his privies allege anything inconsistent therewith, and this too, when the subsequent suit is upon the same or different cause of action ; nor is it necessary, that precisely the same parties were plaintiffs or defendants in the suit; provided the same subject-matter in controversy between two or more of the parties to the two suits respectively has been in the former suit directly in issue and decided. The conclusiveness of the judgment or decree extends beyond what may appear on its face to every allegation, which has been made on one side and denied on the other and was in issue and determined in the course of the proceedings. If it appear by the record, that the point in controversy was necessarily decided in the first suit, whether upon demurrer or the facts in issue, it can not be again considered in any subsequent suit between any of the parties or their privies. But this law of res adjudioata, is subject to the following qualification : Mo party can ever be estopped or in any way prejudiced by any judgment or decree, if the record in the first suit on its face shows, that he had no opportunity to be heard in opposition to the entry of such judgment or decree. (Pool v. Hilworth, 26 W. Va. 583; Corruthers v. Sargent, 20 W. Va. 356; Beckwith v. Thompson, 18 W. Va. 103; Coville v. Gileman, 13 W. Va. 327; W. M. & M. Co. v. Va. C. C. Co., 10 W. Va. 250; Tracy v. Shumate, 22 W. Va. 509; Renick v. Ludington, 20 W. Va. 511; S. C. 16 W. Va. 379; Haymond v. Camden, 22 W. Va. 192, 199; Stevens v. Brown, 24 W. Va. 234; Underwood v. Mc Veigh, 23 Gratt. 409.)

The first of the above cases establish the general principles of the law as to res adjudioata as above stated ; and the last five establish the qualification given above. Haymond v. Camden, 22 W. Va. 182, pt. 9 of Syll., and Stevens v. Brown, 24 W. Va. 236, decide expressly, that a sentence of a court pronounced against a party, when the court did not hear him or give him an opportunity to be heard, is not a judicial determination of his rights and is not entitled to respect in any other tribunal. It must follow as a matter of course, that such party can not be estopped by such a decision as res judicata in any other suit between the same parties involving the question at issue and so decided in the first suit. In each of these cases the party, against whom the decision was rendered, was, when it was rendered, resident in a country at war with the country, in which such decision was rendered, and thus could have no opportunity to be heard on the questions decided. Such decision was not binding on him as res adjudieata. In Renick v. Ludington, 20 W. V. 511, it was decided, that the law of res ad-judicata can not be permitted to overthrow or destroy another fundamental principal, that every person, who is to be affected by an adjudication, should have an oportunity to be heard in his defence both in repelling matters of fact and upon matters of law. In that case/the decree, which was relied upon as res adjudieata, had been pronounced, before the party, who resisted it, had been made a party to the suit, and so before he had an opportunity to be heard in his defence. It is the status of the cause, when the decree relied upon as res adjudieata was entered, which must be looked to in determining, whether it can be so regarded. It can not be so regarded, if the party, against whom it is relied upon as res adjudieata, had not an opportunity to dispute before the court the points of law or of fact, the decision of which affects his interest in some subsequent suit. This I impliedly recognized as law in the opinion in Tracy v. Shumate, 22 W. Va. 510: — “ It is sufficient to make a decree an estoppel as res adjudieata, if the status of the suit was such, that the parties might have had their suit disposed of on its merits, if they had presented all their evidence, and the court had properly understood the facts and correctly applied the law to the facts.” For of course from this it would follow, that, if the status of the suit, when a decree was rendered, was such, that any of the parties to it had not then or prior thereto the opportunity to present any proof as to the facts bearing on the points to be decided, and had no oportunity to be heard on the law involved in the decision, when it was rendered, he could not be bound by such evidence as res adjudieata in another subsequent suit, in which the point so decided would be prejudicial to him.

It matters not, that; when such decree was rendered, such person was a party to the suit, if for any reason he had no opportunity to be heard. This is illustrated by Haymond v. Camden and Stephens v. Brown above cited and still better by Underwood v. Mc Veigh, 23 Gratt. 409. In that case Underwood was a party to the suit at the time, when the decree relied upon in a subsequent suit as an estoppel was pronounced ; but the court had in the first suit improperly stricken out his answer and refused to let him defend the suit, because he was a rebel; and for that reason he did not have an opportunity, when the decree was entered, to be heard. The court held in another subsequent suit, that he could not be estopped by the decree as res adjudicata.

Enough has been said to show, that however firmly the principles of res adjudieata as stated above are incorporated in our jurisprudence, and however pertinaciously they may have been upheld in spite of the wrong occasionally indicted on individuals, they must yield to the still more fundamental principle, that no one can be bound by any judgv ment or decree, if the record shows, that, when it was rendered, he had had no opportunity to be heard on the questions of law and facts involved, whether the decision was prejudicial to his rights in the cause, in which it was rendered or be prejudicial to his rights only in a subsequent suit arising from another cause of action with other parties to the suit or their privies. When these principles are applied to the case before us, it is obvious, that the decree in McCoy's executor v. McCoy's devisees rendered by the OBt cuit Court of Pendleton on the 23d of October, 1880, can not estop Benjamin McCoy in the cause before us from alleging, that the interest of Lucinda Bexroade in the estate of Gen’l McCoy was less than one tenth thereof, because the record in the case shows, that neither Benjamin McCoy nor Lucinda Bexroade had, when the final decision was entered any opportunity to be heard. If either of them had regarded the report of the commissioner as to what portion of Gen’l McCoy’s estate should be given to each of the residuary lega atees, as erroneous, neither of them could have excepted tg it for such error; for, if it was an error, it could not have affected either of them injuriously. William McCoy and any of the defendants, who by the commissioner’s report appeared still to have an interest in the question, and in whose favor the court in this final decree ordered money to be paid as decided in the -report, could have excepted to it and could have been heard by the court, and having this opportunity to be heard they are bound by this decree as res adjudicate/,; but none of the other parties to this suit are so bound. The plaintiff in the cause before us and Lucinda Rexroade, the ancestress of the defendants, could have excepted before the commissioner to that part of his report in which he states that William McCoy then owned all their interest in the estate, dhd they are therefore bound by this final decree, which confirmed the report in this particular, and are es-topped from asserting in a subsequent suit, that William McCoy did not then own their interest. But this question is not involved in the cause before us. They did not in that case take that course, doubtless because they knew, that in that respect the commissioner’s report was correct. Benjamin McCoy’s- deed to William McCoy, filed with the answer in this cause, shows, that they had transferred all their interest as devisees to William McCoy; and there was-no stipulation in the transfer, whereby they or either of them could be held responsible, however small said interest might prove to be. So that the only effect of sending the deed to the court with the report of the commissioner, if .they had chosen-to do so, would have been- to show even more clearly t¿han the report shows, that t-hey could not be heard on the final decree entered in the cause, because they had no interest in it; and they would have had no right to complain, if they had been dismissed from the cause by the order of the court.

This decree therefore can neither estop any of the parties to the cause now before us nor be used as evidence for or against any of them.

As it was not shown in this cause, that any of the witnesses in McCoy's executor v. McCoy's devisees was dead or for any other reason was incapable of giving testimony without extraordinary trouble, it is questionable whether on the trial of the cause any of their depositions could be read. It is the practice in England never to allow depositions in any other cause between the same parties tobe read, unless the court has entered an order permitting them to be read (2 Dan. Ch’y Prac., 3d Am. fre 3d Eng. Ed. 865-867); but I am not prepared to say, that this practice has been or should be followed in this State. When depositions in one-chancery cause have been read in another, so far as I have observed, no formal order of the court permitting it seems to have been made. (Payne v. Coles, 1 Munf. 373; Chapman v. Chapman, Id. 398). Whether any of the depositions in. McCoy's executor v. McCoy's devisees can be read on the hearing of this cause, and what course, if any particular course, should be pursued, in order that any of them. may be so read, I deem it unnecessary to consider or to express any opinion in the cause as now presented to us; It is only necessary or proper now to decide, whether on a motion to dissolve the injunction the court below or this Court should read any of these depositions. It seems to me, that neither court should read them ; and I presume, they were not read by the court below. I base my opinion on the peculiar manner, in which, and the time, at Which the record and depositions were filed in this cause. They were filed more than thirteen years after the filing of the bill as an exhibit with the only answer and are not brought in as evidence in the cause, and nothing is said aboutthe depositions. The entire record in Me Ooy's executor v. McOoy's devisees is filed as an exhibit simply to show, that the pretensions of the parties to that cause as shown in the bill were not correctly stated, and because, though this record had been referred as an exhibit in the bill, it had not been filed with the bill. The notice to dissolve the injunction, which had been granted more than thirteen years before, was given twelve days after the record and depositions were thus filed; and on this motion the decree appealed from dissolving the injunction was rendered. This notice to dissolve was given only ten days after the taking of the only deposition, which was ever taken in this cause. I presume, that the bill and answer and this deposition and perhaps the final decree in McCoy's executor v. McCoy's devisees was all that the court considered before dissolving the injunction. It is very'questionable, whether the court ever considered said final decree, as it was not referred to or relied upon as an estoppel in the answer; and we have seen, the court should not have considered it, because it could not be evidence either for or against any of the parties to this cause. If the court on the motion to dissolve had read the numerous depositions introduced into this cause in the manner, we have stated, it would have operated a surprise on the plaintiff, who had no reason to suppose, that they would be relied upon, and, even if he had guessed they would, had no opportunity to take any depositions to disprove them.

While I do not at present think, it would have been necessary, as is the practice in England, to obtain an order of the court, that these depositions, if competent testimony, might be read, still it was necessary, before the court should read them on the motion to dissolve, that the defendant, if he relied upon them as evidence, should, have intimated at least, that he did so, in his answer filed only a few days, before he gave notice of his motion to dissolve, and with which he filed the record containing these depositions. For this reason alone (even if they were competent evidence, on which I express no opinion) they should not have been and, I presume, were not read on the motion to dissolve; and ip reviewing the decree dissolving the injunction we will no.t consider any of these depositions.

On the hearing of a motion to dissolve an injunction the defendant making the motion must be considered as the actor, and on him rests the burden of disproving the allegations in the bill, which have been sworn to by the plaintiff, and which show, that he is entitled to the injunction which he has obtained. If the allegations of the bill, when taken as true, do not show, that the plaintiff is entitled to the injunction granted, it will be dissolved on motion even before answer filed. (Ludington v. Tiffany, 6 W. Va. 11.) But if the allegations are sufficient to entitle the plaintiff to the injunction, they must be proven to be untrue by the defendant on his motion to dissolve after answer filed. The answer itself, if sworn to, though not evidence in this State on a final hearing of a chancery cause, is evidence on a motion to dissolve an injunction carrying with it the weight of an affidavit. In this case the affidavit made to the answer is meréiy that “the defendant believes, that the facts and allegations contained in his answer are true.” Such an affidavit can have no weight on a motion to dissolve an injunction ; for it may well consist with the fact, that the affiant has no knowledge with reference to the essential facts, on which the injunction was granted. He may well believe from idle reports or hearsay, that the statement of facts, on which the injunction was granted, was false, and he may properly on such reports declare in his answer the statement to be false, if he swear to his answer, as this answer was sworn to.

The only evidence before the court on the motion to dissolve was the exhibits filed with the bill and the deposition of the defendant. Was that sufficient evidence to justify the court in dissolving the injunction, which was awarded more than thirteen years before? The judgment enjoined was for the consideration to be paid by Benjamin McOoy to Lucinda Rexroade for a.ll her right, title and interest in and to the real and personal estate of Gen’l McOoy, deceased, under his will, whereby he gave all the remainder of his estate after paying certain bequests and devises to his grandson, William McOoy 3rd, with the following qualification i “But in case William McOoy 3rd should die without lawful issue, then and in that case all the testator’s estate, real and personal, shall be sold at personal sale, and the proceeds thereof shall be divided among my brothers and sisters then living and the heirs of those who are dead, as the law of Virginia directs.” The testator, a resident of Virginia, where all his property was situated, died in 1835 and William McOoy 3rd in 1861 or 1862 after attaining his majority unmarried and without issue. The testator had ten brothers and sisters. The record now presented to this Court, though it may hereafter be changed, shows, that, when the plaintiff purchased all the interest of Lucinda Rexroade iii Gen’l McCoy’s estate, she guaranteed said interest to be at least one tenth of the remainder of the estate after the payment of the special legacies and devises. And by a ■sealed instrument she bound herself to convey it to him by deed with covenants of general warranty on December 1, 1867. This agreement further stipulated, that the unpaid consideration for said purchase was neither to be paid nor to bear interest, until the deed was made.

The injunction to the judgment of the administrator of Lucinda Rexroade, based on the unpaid consideration for said purchase, was founded on two allegations in the bill, one, that Lucinda Rexroade did not in her lifetime make the conveyance to the plaintiff, and that since her death only one of her two heirs had made such conveyance, and that, the plaintiff' should not be required to pay the balance of the purchase-money, till such conveyance should be made, and that then he should not be required to pay any interest;— the other, that it had not been ascertained, though a suit had beep brought for that purpose, what was the interest of Lucinda Rexroade in said estate; that therefore the plaintiff should not be required to pay the judgment till this was ascertained.

The position taken in the answer of Lucinda Rexroade’s administrator and in his demurrer to the bill and in (he argument of his counsel in this Court is, that by the clause in the will above quoted on the d'eath of William McCoy 3d all the real estate of Gen’l McCoy was ordered to be sold, and so his whole estate was converted into personalty when said William McCoy 3d died in 1861 or 1862, and therefore the agreement under seal made by Lucinda Rexroade on June 8,1867, necessarily operated as a legal construction to convey all her said interest without any formal deed; and therefore the stipulation, that she would make a deed was idle and inoperative, and her failure to make such deed would not relieve the plaintiff from the payment of interest on the unpaid purchase-money or on the judgment representing it.

I do not deem it necessary or proper to decide the legal question involved in this position, as the decision, whatever it, might be, could have no effect on the conclusion, which I ^each in the cause before us. To show this I will assume, that the last reason for awarding this injuction was on the face of the bill groundless. The other reason for the injunction, that Lucinda Rexroade did not own one undivided tenth of Gen’l McCoy’s estate under- Ms will, is claimed to be equally groundless. The answer of Lucinda Rexroade’s administrator on this point is as follows : “ That the heirs at law of said Gen’l William McCoy were all nephews and neices of said testator, Gen’l William McCoy, when said William McCoy 3d died; and said estate by virtue of said limitation over in said will passed to said heirs is not true. On the contrary said testator’s heirs at law, when the estate passed to them, were not of the same degree, some being nephews and neices, and some being children of such nephews and neices. So that said estate, by the law of Virginia, descendedles stirpes and not per capita, as the plaintiff pretends, some persons (not however including himself) claim; and Lucinda Bexroad did inherit the share of her mother, Sarah McCoy, in said estate, which was one tenth.”

I deem it unnecessary in this cause, as now presented to us, to decide the legal question thus raised by the defendant; for whatever that decision might be, my conclusion would be the same. I will therefore for the sake of argument assume that defendant’s position stated above is correct. Bu t as the defendant did not in the affidavit to his answer swear to the truth of the statement on which he based his legal conclusion, but only swore, that he believed them to be true, the answer and affidavit on a motion to dissolve an injunction can not, as I have shown, be regarded as evidence. The deposition of the defendant, I will now show, did not prove the statements in his answer; and on the motion to dissolve, the burden of proof rests on him. Did he in liis deposition prove, as he alleged in his answer, that the testator’s heirs at law, when his estate passed to them, were of different degrees of relationship to him, some being nephews and neices and some being children of such nephews and neices ? In his deposition he says: — “When William McCoy 3d died, none of Gen’l William McCoy’s brothers and sisters were living, that he knew of”’ But as many of them had gone to the West, and he did not profess to know much, if anything, about them, his deposition certainly does not prove, that they were all dead, when William McCoy 3d died, but only, that he believed them to be dead and knew nothing to the contrary. If we assume, that he was right in this supposition, the allegation in his bill is true, that at the death of William McCoy 3d his heirs at law instead of being of different degrees of relationship to Gen’l McCoy were all of the same degree, nephews and nieces, and under the “law of Virginia” the descent would be per capita instead of per stirpes, as claimed in the answer, unless as in effect is stated in the answer, some of these nephews and nieces were dead, when William McCoy 3d died, and had left children or descendants living, which the defendant in his deposition fails to prove, swearing on the-contrary, that he does not know whether it is true or not, and answering when asked, whether any of these nephews and nieces left children: — “there was only one of them in Pendleton county, Virginia, that I knew of. Some of them have moved West, and I am not acquainted with their descendants.” This is all the proof on this subject in the deposition. It certainly fails to prove the allegations of the answer, showing on the contrary, that he did not know,, whether they were true or not.

If therefore the law be correctly stated in his answer, it may still be true, that the only heirs at law of Gen’l William McCoy at the death of William McCoy 3d were his nephews and neices, who all stood in the same relation to him, and the distiibution according to the law of Virginia would be per capita not per stirpes, and the interest of Lucinda Rexroade was not the share of her mother, Sarah McCoy, one of the brothex-s and sistei-s of Gen’l McCoy. The defendants have also failed to show, that the share of Lucinda Rexroade in the estate of Gen’l McCoy was one-tenth, as she guaranteed it was, when she sold her interest to the plaintiff. If it was less that one tenth the injunction should not have been totally dissolved. But there is a still stronger reason, why the court on this motion ought not to-have dissolved this injunction either in whole or in pai-t but should have denied the motion and waited till the case was ready for hearing befoie either dissolving or perpetuating this injunction in whole or in j>art, requiring the plaintiff under penalty of dismissing his bill to put the cause in a condition, in which it could be made l-eady for hearing in a reasonable time.

I prefer to base this opinion and the decree, which we enter, on this ground solely, as I regard it to be one, which is applicable to every motion to dissolve an injunction, when such motion is made years after the injunction was awarded. If I understand the law in such a case, it is this: — When an injunction is awarded, the defendant may at once give the plaintiff notice, that he will move to dissolve such injunction ; and upon reasonable notice in writing of the time, when, and the place, where such motion will be made, it may be acted upon by the judge in vacation. (Warth Am. Code, ch. 188, § 12, p. 739). The reason of this is obvious. The defendant may be greatly prejudiced by such injunction; and justice to him may require prompt action on a motion to dissolve. If the motion is made, before the defendant has filed an answer, when the allegations of the bill have been verified by affidavit, as they must be, they must be taken to be true. (Ludington v. Tiffany, 6 W. Va. 11; Peatross v. McLaughlin, 6 Gratt. 64). If the grounds for asking an injunction as stated in the bill are not sufficient to justify the awarding of an injunction, the defendant before moving to dissolve it should file his answer, which should be sworn to. If the answer fully and fairly meets all the material allegations in the bill without evasion, it must be taken as true, so far as it is so responsive to the bill; and, if when so regarded as true, it leaves no reasonable doubt on the mind of the court as to the impropriety of continuing the injunction, it should at once be dissolved, otherwise, it should be continued to the hearing. Of course the statements made in the 'answer and regarded as true by the court must be supported by affidavit; and if the affidavit, as in the case before us, does not verify the statements in the answer but simply states, that the respondent believes them to be true, they will not be regarded as true. (Miller v. Washburn, 3 Ired. Eq. 161; Brewer v. Day, 8 C. E. Green 418; North v. Person, 4 Rand. 1; Brown v. Stewart, 1 Md. Chy. 87).

If the answer does not on these principles justify a dissolution of the injunction, the motion to dissolve may be supported by affidavits or depositions. If on so dissolving the injunction promptly the plaintiff is injured, by introducing further evidence he may have it re-instated on his motion. (Toll Bridge v. Free Bridge, 1 Rand. 206.) If no motion is made by the defendant for years to dissolve an injunction, the inference is, that he is not seriously damaged by it, and that he regards the bond given by the plaintiff as sufficient protection till the hearing of the cause, when the injunction will be dissolved, if its continuance is improper. Hence delay on the part of the defendant to make a motion to dissolve does not alone constitute a sufficient ground for refusing the motion; but it will cause a court to hesitate to grant the motion, unless the defendant makes a very strong case. (Hichford v. Shews, 4 Myl. and Or. 500; Feisted v. Kings College, 10 Beav. 491; Bell v. Railway Co., 1 Eng. R’y Gas. 616.)

These principles seem to me to be especially applicable to a motion to dissolve an injunction to stay proceedings in this State on a judgment for money ; for our statute provides, that, when such injunction is dissolved, there shall be paid to the party holding the judgment or decree as damages interest at the rate of ten per cent, per annum on so much of said judgment, as may be due, from the date thereof with costs. (Warth Am. Code, chap. 133, § 12.) If the defendant has for years acquiesced in said injunction, he can hardly be regarded as injured by the fact, that the court refused to dissolve the injunction on his motion and required him to wait till the final hearing of the cause, thus affording to both parties the fullest opportunity to have the question decided on its merits. I think therefore, I am' fully justified in saying, that such an injunction should not be dissolved on motion but should be continued to the hearing of the cause, unless on the motion the evidence of the defendant is such, that the court sees clearly, that no evidence, which the plaintiff can produce, can alter the case materially. As for instance when the defendant shows, that the plaintiff is estopped by the judgment or decree of a court from further alleging the existence of facts or of law, which form the basis of the injunction. In such cases only should a court under such circumstances sustain a motion to dissolve such an injunction but should continue the injunction in force till the cause can be regularly heard on its merits. In no other case can the court sustain such a motion under such circumstances without the danger of doing injustice to the plaintiff, while no real injustice will be done to the defendant by continuing the injunction till the hearing.

In this cause no motion was made to dissolve the injunction for thirteen years, after it was granted. The defendant acquiesced all this time and on his motion to dissolve offered no evidence, that the plaintiff was estopped from proving the material allegations in the bill, on which the injunction was properly awarded. The Circuit Court therefore erred in the decree appealed from dissolving the injunction on the defendant’s motion. It should have continued the injunction in force till the hearing of the cause.

But the plaintiff in this cause has been grossly negligent. Having obtained his injunction upon an ex parte statement he has permitted the cause to be continued at rules for more than thirteen years as to one of the defendants, neither having process served nor order of publication taken against him; and, though for years he has known, that one of the defendants in his bill was dead, when the suit was instituted, and also who his representatives were, he has never amended his bill, so as to make them parties; and in addition to this he never has filed with his bill his agreement with Lucinda Rexroade, upon which he relied as the ground of his injunction, and which his bill professed to file as an exhibit. If the defendant, upon whom process was served, and whose judgment was enjoined, had not been equally negligent in not calling the attention of the court to these omissions and defaults of the • plaintiff and in failing for thirteen years to make a motion to dissolve the injunction, the court ought to have dissolved the injunction on motion because of the plaintiff’s delay in bringing the proper parties before the court and his delay in getting the cause ready for hearing; for a court ought on motion to dissolve an injunction, if the plaintiff is grossly negligent in advancing the cause by permitting it to continue at rules an unreasonable length of time, whenever such motion is made with reasonable irromptness. But, if such motion also be unreasonably delayed by the defendant, the court ought not except under peculiar circumstances to dissolve the injunction on motion, even though the plaintiff has been guilty of gross negligence in failing to advance his suit. But in such case, while the court should refuse to dissolve the injunction on motion, it should require the plaintiff to prepare the case promptly for hearing by having the summons served on all the defendants or order of publication made against the absent defendants or by filing an amended bill making the requisite parties and promptly preparing it for hearing under the penalty of dissolving the injunction and dismissing the bill on motion. (Depeyster v. Graves, 2 Johns. Ch’y 146; Gray v. The Duke, &c., 17 Ves. 231; Corry v. Voorhees, 1 Green (2 N. J. Ch’y) 5; Beckford v. Shewes, 4 Myln. & Co. (18 Eng. Ch’y) 498; Farrow v. Vansittart, 1 Eng. R’y Cas. 602; Bell v. Railway Co., Id. 616).

In the cause before us a brothel' of the defendant, Addison McCoy, was made a defendant with him, but his name was unknown. The answer of Addison McCoy and his deposition show, that he had been dead for many years before the filing of the bill, but that he had representatives living, who ought to be made defendants. These representatives were Sarah E. Jack, W. E. Jack, her husband, and Nancy Stewart, her mother. The court ought to require an amended bill to be filed making these parties defendants, though their co-defendant, Addison McCoy, alleges, that they have conveyed all their interest in the estate of Lucinda Rexroade to him. But they have a right, if they think proper, to dispute this allegation and to be heardin the cause.

There is an obvious error in the decree appealed from in the ascertainment of the debt, interest and costs due on the judgment. It is ascertained by the court below to have been $3,200.02 on October 6,1885. In so ascertaining the amount the court gave no credit on the judgment enjoined, though the sheriff’s return on the execution shows, that it was entitled to a credit of $243.6TJ paid upon it on July 8, 1873, by Benjamin McCoy; and the venditioni exponas also shows, that it was entitled to this credit; and both the execution and the venditioni exponas were filed with the bill as exhibits, and the credit was claimed in the bill. It is true, the answer of Lucinda Rexroade’s administrator avers, that it is not true, that the plaintiff made any payment to the sheriff on this execution, denying inferentially the sheriff’s return. But the affidavit appended to this answer states only, that the respondent believes the statements made in it to be true; and in his deposition he says nothing about it. On this evidence the court should have allowed this credit. The calculation is made as prescribed by chap. 133, § 12, p. 738 of Warth’s Amended Code ; and without this credit it would be as follows :

Amount of judgment. $1,302 90

Interest from April 11,1872, to September 1,1873, when injunction took effect. 108 58

Costs. 11 37

$1,422 85

Damages on this sum at ten per eent. per annum from September 1, 1873, to date of decree, October 6, 1885, When injunction was dissolved (in lieu of interest). $1,721 25

$3,144 10

This should have been the amount of the decree, if no credit had been allowed on the judgment; but owing doubtless to a mistake in the calculations the decree was for $3,-200.02, which is too much by $55.92. If this credit had been allowed, as upon the evidence now before the court it should have been, the calculation would have been as follows:

Amount of judgment. $1,302 90

Int. from April 11, 1872, to July 8,1873. 97 07

Costs. 11 37

$1,411 34

Paid on judgment..•. 243 67

$1,167 67

Int. from July 8, 1873, to September 1, 1873, when injunction took effect. 10 30

$1,177 97

Damages on same at 10 per eent. per annum from September 1, 1873, to October 6, 1885. 1,425 01

$2,602 98

Thus there was an error of $597.06 in the amount stated to be due from the plaintiff in the decree of October 6,1885. But as this decree must be reversed in toto, because it improperly dissolved the injunction, which should have been continued in force till the regular hearing of the cause on its merits, the defendants below, when this cause is remanded to be farther proceeded with, will be at liberty by any proper testimony, if any can be produced, to show, that this credit should not be given. The above calculations are based on the evidence now in the cause and may of course be changed by further testimony.

For the reasons, I have assigned, the decree of October 6, 1885, must be reversed, set aside and annulled, and the appellant, Benjamin McCoy, must recover of the appellee, Addison McCoy, the administrator of Lucinda Rexroade, his costs in this Court expended to be paid out of the assets of his intestate in his hands to be administered; and this Court must enter a decree overruling the motion of Addison McCoy, the administrator of Lucinda Rexroade, to dissolve the injunction and continuing said injunction in force till the hearing of the cause on its merits ; but requiring Benjamin McCoy to file an amended bill making Sarah E. Jack and William E. Jack, her husband, and Mary Stewart defendants and to file with said amended bill the original agreement under seal dated June 8,1867, referred to in his original bill as executed by Lucinda Rexroade, whereby she sold to him all her interest in the estate of Gen’l William McCoy; and said Benjamin McCoy must be required to so expedite the cause by having the summons to answer the original bill and this amended bill served on all the defendants in the amended bill or by having order of publication made against those, who are non-residents of this State, so that this cause shall be set for hearing as to all the defendants within three months, after the mandate of this Court is entered in the court below, under the jjenalty of dissolving said injunction and dismissing said suit, unless he can show good cause, why he has not expedited the suit as required ; and this cause must be remanded to the Circuit Court of Harrison to be further proceeded with according to the principles laid down in this opinion and further according to the principles governing courts of equity.

Johnson, President, concurs and Snyder, Judge, concurs in the conclusion and syllabus.

Reversed. Remaiíded.