Moore v. Smith, 26 W. Va. 379

Moore v. Smith

26 W. Va. 379 | W. Va. | 1885

Green, Judge:

ft will be observed from the statement of this case, that the record is in some respects defective; but, as no certiorari has been asked to bring up the omitted parts of the record, and there is enough before us to render a proper decree in this cause doing justice to all, we will at once decide it. The demurrer to the bill ivas properly overruled. The demurrer filed alleged as a cause of demurrer “that no proper exhibit *383was filed with the bill showing that the note” (it should have been called bond) “was executed or that Moore, the plaintifi, was the owner ot the same.” This demurrer has so little basis as to induce the suspicion, that it was filed merely for delay. If a proper order had been made on the overruling of the demurrer requiring the defendant, Smith, to file his answer on a named day during the term of the court, no delay could have been produced by the filing of the demurrer. Authority can hardly be needed to show that this demurrer was groundless; hut we refer to Robinson v. Dix et al, 18 W. Va. 529, syl. point 3, where this Court held: “A court of equity has jurisdiction to enforce a vendor’s lien for the unpaid purchase-money represented by a bond though it has been lost; and while it’s loss and that it can not be found on search may be properly stated in the bill and supported by affidavits; yet the failure to make such allegation would be no ground of demurrer, as it may afterwards be done on motion of the defendant, or these facts may be shown in the progress of the cause.” In the case before us thebill would not have been demurrable, even if it had failed to state the loss of the bond.

It is equally obvious that the decree of July 10, 1883, must be overruled and annulled. The court at that time had no right to enter a decree settling the principles of the cause and decreeing a sale of the tract of land of the defendant, Smith ; for the Code of West Virginia, ch. 125, § 30, provides: “If a demurrer be overruled, there shall be a rule upon the defendant to answer the bill. And if he fails to appear and answer the bill on the day specified in the order, the plaintiff shall be entitled to a decree against him for the relief prayed for therein.” 'It seems clear therefore, that such a decree, as was entered, could not have been entered, when the demurrer was overruled, nor a few days afterwards during the term of the court, unless the court, after it overruled the demurrer to the bill, had ordered Smith to answer the bill on or before a specified day, and he had failed to do so. If this order had been made, and the day fixed for the answer to be filed had been prior to July 10, 1883, then a decree of the nature of the decree of that date might properly have been made. Otherwise could not, and in no case should it have been made till after *384the correction of certain obvious errors on its face, such as the defective recitals of how the cause came on to be heard. Instead of the decree being in favor of the plaintiff against the defendants it should have been, if a personal decree was rendered at all, against the defendant Smith only, and the 'bond required of the special commissioner of sale should have been a bond with good security to be approved by the clerk of the court.

The statute speaks of a rule upon the defendant to answer the bill at a specified day ; but, as the defendant was in court by the filing of his demurrer, there was no necessity for such a rule to be served upon him. So that the rule in effect amounts only to an order authorizing him to file his answer on or before a day specified in the order. And the entry is usually and properly made in this form. All this seems clear enough on the face of the statute. But this Court has frequently decided, that under the provisions of sec. 30 of ch. 125 of the Code the court upon overruling a demurrer to a bill should order a rule against the defendant, requiring him to answer the bill within a fixed time, and that it is error to enter a decree against such defendant for the relief prayed in the bill on overruling a demurrer, but the court should order such rule, and an opportunity should be given to answer. Peck v. Chambers, 8 W. Va. 210; Nichols v. Nichols, Id. 174.

The said sec. 30 has been re-enacted in the Acts of 1882, ch. 71 sec. 30, p. 158. At the conclusion of the decree on the merits of the cáse of Pecks v. Chambers, supra, this order appears : “The defendant has leave to file his answer within ninety days from this date.” The court commenting in that case on this order says : “The granting leave to file .an answer within ninety days at the end of the decree of sale is not a compliance with the law upon the subject. The rule to answer should first have been made upon the defendant, and if he failed to answer at the day fixed by the rule, then the court would have been authorized to proceed to decree the relief prayed but not before without the consent of the defendant.” 8 W. Va. 216; Sutton v. Gatewood, 6 Munf. 398.

The rule thus declared, it seems to me, is the only reasonable interpretation of the statute. It would certainly be no *385benefit to the defendant to permit him to file his answer, after the case had been decided against him and a decree entered on the merits. The object of the statute is to give him an opportunity to file his answer, before the cause is heard on its merits. After the decree an answer would be but an idle form, because it could avail nothing as against the decree already entered and a cause already decided upon its merits.

The cause under consideration is very similar to the one just referred to in respect to the question under discussion. The decree of June 25, 1883, upon overruling the demurrer awarded a rule against the appellant but fixed no time, within which he was required to auswer. Then at the same term the court without any further reference to the rule and before answer filed entered a decree for the sale of the land. The sale was made, but the purchaser having failed to comply with its terms, a re-sale was ordered by decree of Otober 25, 1883, and by this decree another rule was awarded against the appellant to answer the bill. Thus after the decree of July 10, 1883, upon the merits the appellant was under no obligation to answer, because any answer filed after that time would have availed him nothing. The cause had already been decided. Tor the same reason the rule awarded by the decree of October 25,1883, was too late to be of any service to him. It is the natural right of every defendant to be beard upon the merits of the suit against him, and unless be is in default according to the practice and rules of equity he can not be deprived of this right. In this cause the mode prescribed by the statute to place the appellant in default had not been complied with ; consequently he was not in default, and it was error to grant the relief prayed by the bill without such compliance. The said decrees of July 10, 1883, and October 25,1883, must, therefore, be reversed and the cause remanded for further proceedings in accordance with the principles announced in this opinion.

ReveRSed. Remanded.