33 W. Va. 682 | W. Va. | 1890
This case was before this Court upon an appeal obtained by Mary A. Poundstone, and was decided on the 5th day of
The defendant Mary A. Poundstone answered said bill, denying all of its material allegations, claiming that the sum of $3,240.00 was loaned to plaintiff out of her separate estate, and that she took plaintiff’s note therefor, with John W. Cor-rothers as his surety, and that plaintiff* was informed that said money was her own separate property at the time of the
Numerous depositions were taken, both by plaintiff and defendant, and said cause was referred to a commissioner to settle the partnership accounts between the plaintiff and George W. Pouudstone; and on the 21st day of April, 1876, said cause was finally heard upon the report of said commissioner, and the papers theretofore read ; and the court decreed that the plaintiff was entitled to recover from George W. Pouudstone the sum of $8,787.13, and that the fund attached in said cause in the possession of the First National Bank of Fairmont was in equity subject to the payment thereof; and decreed in his favor for that amount, with interest thereon from the first day of said term of court, and directed the amount in possession of said bank, except sufficient to pay the costs, to be paid to plaintiff.
From this decree said Mary A. Pouudstone obtained an appeal to this Court on the 23d day of December, 1880, and on the 5th day of April, 1884, said appeal was decided, reversing the decree of the Circuit Court of Marion county; this Court holding that the appellant was entitled to all of the proceeds of her note of $3,240.00, with the interest thereon accrued, discharged of the lien-of the plaintiff’s attachment, less such reasonable charges as the First National Bank of Fairmont might be entitled to for the collection thereof; and, if the whole or a part thereof had been paid over to the plaintiff, she was entitled to a decree against him for the amount so received by him, with interest from the time he received the same, together with her costs in said Circuit Court expended; and that, if any part of said proceeds remained in said bank, she was entitled to a decree against it for such proceeds, with interest from the time the same, was received by it, and the cause .was remanded for further proceedings to be had therein.
The mandate from this Court was entered in the Circuit Court of Marion county in vacation, on the 19th day of May, 1884, and on the 8th day of July, 1884, the said Mary A. Poundstone moved the said court, then in session, tore-docket said cause, and for leave to file an amended answer to the complainant’s bill; which motion was allowed, and said
The defendant J. W. Corrothers, after reserving the benefit of all just exceptions to said amended answer, and deny ing the right of said defendant Mary A. Poundstone to require him to answer the same as a cross-bill, or to fix any pecuniary liability upon him because of any matter or thing alleged against him in said amended answer, filed a replication traversing all the material allegations therein contained, and the First Rational Bank of Fairmont, making like reservations and denying the right of said Mary A. Poundstone to file said answer as a cross-bill against it, also filed its special replication, traversing the matters alleged in said amended answer.
Rumerous depositions were taken in the cause, and, among other things, it was shown that $300.00 of said money was paid by said First Rational Bank on the 22d of May, 1876, to James Morrow, Jr., and on September 6, 1876, $3,690.00 was paid by said bank to said Richard S. Radcliff; and, said cause having been transferred to the circuit court of Ohio county on the 14th of December, 1888, a decree was rendered therein, holding that the First Rational Bank of Fairmont was not liable to the demand of said Mary A. Poundstone, as claimed by her in this cause,
From this decree the defendant John W. Corrothers applied for and obtained an appeal to this Court, and the first error assigned by appellant was in permitting the said amended answer of Mary A. Poundstone, in the form it was tendered, to be filed, and also in entertaining the same, and allowing testimony in support thereof; claiming that the paymeut of the note by appellant had been passed upon by this Court, aud was res adjudícala; that a new case can not be made by an amended answer, any more than it can be done by an amended bill. Dpon the question of the con-clusiveuess of the decree of this Court in the case of Henry v. Davis, 13 W. Va. 230, it was held that the decree of this Court, upon a question decided by the court below, is final and irreversible; and upon a second appeal in the cause the question decided upon the first appeal can not be reviewed ; and in McCoy v. McCoy, 29 W. Va. 794, (2 S. E. Rep. 809) it was held the conclusiveness of the decree extends not only to what may appear on its face, but to every allegation which was made on one side and denied on the other. See, also, Seabright v. Seabright, 33 W. Va. 152, (10 S. E. Rep. 265.)
Did the court err in allowing the defendant Mary A. Poundstone to file the answer in the nature of a cross-bill, which she did in this case ? In the case of Hansford v. Coal Co., 22 W. Va. 70, this Court held that a “cross-hill should be confined to the matters stated in the original bill, and should 'not introduce new and distinct matters not embraced therein,
These were the only matters in issue in said original cause, which came to this Court and was decided in favor of said female defendant; and in her amended answer she states that all “matters of controversy in the cause raised by the bill or original answer of this defendant have now been finally determined by the said Supreme Court of Appeals, save and accept only the question as to where or in whose
The question as to where said money was at the time this Court rendered its decree was not before the Court, and, of course, it could not be decided. This Court had, however, determined that the money in controversy belonged to her, and it further decided that, if the money had been paid over to plaintiff’, she was entitled to a decree against him for the amount and costs. This, however, she did not desire, because it appears the plaintiff was insolvent, and she seeks by her amended answer to make a new case, and asserts her right to recover against said bank: (1) Because said bank received said note for collection, and ought to have collected it, by use of due dilligence. (2) Because said bank made some kind of fictitious outside or fraudulent arrangement with said Radcliff and his security, John W. Corrothers, or one of them, by which said Corrothers pretended to formally pay into said bank the amount of said note, for the fraudulent and dishonest purpose on their part to create a pretense or ground for suing out an attachment in said causes and attaching said money, and thereby to cheat and defraud her out of said money; and she charges that either at once, or shortly thereafter, he drew said money out of said bank again. (3) Because, as defendant charges, said bank still has the legal custody and control of said note or its proceeds, having taken an indemnifying bond from said Corrothers or Rad-
Now, in this case, new issues seem to be presented, and a new case is made by the new matter alleged in said amended answer. Said bank is charged with want of diligence in collecting said note, when she alleges in her original answer that the defendant Corrothers, the surety of plaintiff in said note, paid the same off at the instance of plaintiff', and took up the note, She alleges that said bank had the legal custody of said note, and, as it was paid off and taken up, it must have been paid to said bank; and yet she complains that this Court did not decide in whose hands is the proceeds of said note for $3,240.00, when her own answer in the original cause shows that she knew where said money was, and in a cross-bill a party can not question what he has admitted in his answer to the original bill. Hudson v. Hudson, 3 Rand. (Va.) 117. Regarding this amended answer as a cross-bill, it is apparent that it is not confined to the matters stated in the original bill or answer, but introduces new and distinct matters, charging said bank with fraud and collusion with said Corrothers and Radcliff, charging that said bank has a secret indemnity in the shape of a bond, and seeking to recover said amount from said Corrothers on account of said fraudulent scheme to get said note sent to said bank for collection, and the formal payment of said money into bank for the dishonest purpose of having it attached by said Radcliff on a false and fraudulent charge of indebtedness, when they all knew said Radcliff was hopelessly insolvent. These allegations constitute new matter that was not contained in the original bill or answer, and no decree could be founded on them. See Hansford v. Coal Co., supra; Story, Eq. Pl. § 401; Piercy v. Beckett, 15 W. Va. 444.
In this case there was no decree in favor of the plaintiff, and there could for that reason be no decree between the co-defendants. In the case of Watson v. Wigginton, 28 W. Va., 568, Gkeen, J., delivering the opinion of the Court, said: “As I understand the law, there can be no decree in any case between co-defendants, where no decree can properly be rendered in favor of the
The matters set up in the amended answer of the defendant Mary A. Poundstone constitute an entire departure from the issues made by the original pleadings and the purposes of the original suit. This Court on said appeal had determined that said female defendant was entitled to all of the proceeds of her note, and that, if said proceeds were in the hands of plaintiff’, she was entitled to a decree against him for the amount, with interest from the time he received it; and that if any part of said proceeds was in custody of said bauk she was entitled to a decree against it for such proceeds,1 with interest from the time the same was received, and that decision was final as to the parties to said suit, but, instead of abiding by said decision, she filed this amended answer in the nature of a cross-bill, setting up new matter, and seeking thereby to obtain an additional decree against her co-defendant, Corrothers; and that, too, not by reason of any equities which arise out of the pleadings between the plaintiff and defendants, which we have seen can not be done. If she had a cause of action against said Corrothers, she should have brought an independent suit. She could not obtain the relief prayed for in this suit, which was instituted for a different purpose, and which was ended, so far as the defendant Corrothers was concerned, because it was alleged in the bill and conceded in the answer that Corrothers, as surety for Radcliff, had paid said note to the party author
For these reasons the decree complained of must be reversed, and the cause remanded to the Circuit Court of Ohio county for further proceedings to be had thei’ein according to the principles announced in this opinion, and the defendant Mary A. Poundstone must pay the costs of this appeal.
REVERSED. REMANDED.