94 W. Va. 466 | W. Va. | 1923
Demurrer to the bill was overruled and the action of the court in so doing is certified for review. Can plaintiff assert his claim in a court of equity? This is the sole question presented.
Rothwell, the plaintiff, contends that Higgins Construction Company owes him a debt of at least $2940; and that the county court, also a defendant, owes him the sum of $3,468;' and the object of his bill is to collect these amounts from the respective debtors. It appears from the bill that his two claims above set out arise in this way: J. B. Brice and R. Higgins, as a partnership, afterwards incorporated, contracted with the county court of Raleigh county for the construction of about four and a half miles of county road known as the Surveyor-Eecles road, the estimated cost of construction being $49,777.50, and gave bond for the faithful performance of the terms of the contract; to assist them in carrying out the contract the county court advanced them the sum of $7,600 for the purchase of a steam shovel to be used in the work, and took a deed of trust lien on the steam shovel for repayment of the amount advanced; and it was agreed that 30% of the estimates of the amounts due the contractors as ,the work progressed should be set aside as a fund to extinguish the $7,600 advanced. Subsequently, plaintiff took over from the Higgins Construction Company, a corporation, successor to J. B. Brice and R. Higgins, a part of the road from a point thereon designated as station 140 to station Zero, at or near Covey’s store, by agreement and consent of the county court. The money to become due the plaintiff by reason of the construction of the part of the road taken over by him was to be paid direct to him from the county court. However, it was agreed that 30% of the sums due
There are several grounds urged for equitable jurisdiction: (1) Plaintiff is entitled to be subrogated for his claim of $2,940 against Higgins Construction Company to the lien of tbe county court under its deed of trust dated July 31, 1920; (2)' also to be subrogated to tbe claim of the construction company for constructing* tbe Clear Fork road, in order to reimburse plaintiff for the $2,940 claim paid by him; (3) plaintiff’s contract with tbe construction company and tbe county court to construct a portion of tbe Surveyor-Eccles road is an equitable assignment by the construction company for the amount due him for performing bis part of thé contract, and he can sue in equity to recover from tbe county court tbe $3,468 due on that contract; (4) equity has jurisdiction because of a complication of tbe accounts between tbe parties; and to avoid a multiplicity of suits.
Let us examine these grounds.
(1) It appears from tbe bill that on. July 31, 1920, Brice and Higgins executed a deed of trust on the steam shovel to Kilgore, trustee, for tbe purpose of securing tbe money advanced by tbe county court, $7,600; it also appears that on September 6, 1921, the Higgins Construction Company executed a deed of trust on tbe steam shovel to Hutchinson, trustee, to secure plaintiff’s debt of $2,940, which is now sought to be subrogated to the trust lien of the county court. The last deed of trust referred to is exhibited with the bill and it is averred that the acknowledgment thereto is defective and that by reason thereof, although recorded, it is not good
What is the necessity for subrogation to the lien of the county court when there is a subsisting valid lien already belonging to plaintiff 1 No purchaser or creditor has secured
2. Nor can we see any right of plaintiff to subrogate himself. to the claim of Higgins Construction Company against the county court, now in litigation, for the construction of the Clear Fork district road. Plaintiff has no lien on that debt, if any there be. He has no judgment. His open account arises out of another, and distinct transaction. But it. is argued that his remedy at law by judgment would be unavailing, because his 'debtor -is insolvent, and he could not garnishee the fund in the hands of the county court, under the rule of public policy relieving public officers from attachment or garnishment of public funds in their- hands belonging to others with whom they have contracted for the furtherance of public needs. The reason of the rule is that to allow funds in the hands of public officials to be attached or garnished would subject these officers and the public corporations to annoyance in being brought into court in controversies in which the public is not interested, and because it would deprive those who contract with the public of the means of performing their obligations. This policy is firmly established in this state. Leiter v. Fire Engine Co., 86 W. Va. 599. Plaintiff is attempting to do in a court of equity that which public poliejr has declared shall not be done. “Equity follows the law.”
3. Is plaintiff entitled to the aid of a court of equity in order to collect his claim against the county court for building a part of the Surveyor-Eccles road, amounting to $3,468? There can be no doubt that he has a complete, adequate and expeditious remedy at law against the county court on this claim. The bill charges plaintiff sub-contracted a part of this from Higgins -Construction Company, and agreed to pay
In Wamsley v. Ward an order had been drawn for a certain sum to be paid out of a particular fund, the amount of the order not being equal to the fund. The payee had not consented to nor accepted the order, and the court said that the order operated as an equitable assignment of the fund pro tanto, and while an action at law could not be maintained thereon, a court of equity would recognize and enforce it, citing and approving Bank v. Kimberlands, 16 W. Va. 588. The case of Smith v., Davis holds that a surety who has paid a judgment against his principal is subrogated to the rights and remedies of the creditor and may enforce it against the land of the principal within the same time that the original creditor could have enforced it. Hudhins v. Ward follows and accentuates the well known doctrine that where one creditor has a lien upon two funds, and another creditor has a lien upon but one'of the funds, the former creditor must exhaust his remedy first against that fund which the latter cannot take. These principles have no application here. The county court consented to the sub-contract, accepted plaintiff as the contractor for the part of the road to be built by him under the terms of the original contract and agreed
4. Are the accounts between the parties so complicated and intricate that they cannot be ascertained at law? We find no such averment in the bill; and the facts alleged do not warrant such conclusion. The basis of the claims is the amount of road work done by each contractor, and when that basis is ascertained mathematical calculation will solve the .respective amounts. If there be controversy over the sums owing for construction work, that controversy presents questions, for jury determination under proper instructions from the court. While the jurisdiction of equity for the settlement of accounts is not clearly defined in this state, the general rule is that equity will take jurisdiction: 1. where there are mutual complicated demands; 2. where the ' accounts are on one side, and discovery is sought material to relief; 3. and equity having taken jurisdiction for discovery, to avoid a multiplicity' of suits, will administer suitable relief. Jurisdiction will be declined: 1. Where the demands are all on one side and no discovery is claimed or is necessary; 2. where on one side there are demands, and on the other mere payments or sets off and no discovery is sought, or required. Fowle v. Lawson, 5 Peters 495; Lafever v. Billmyer, 5 W. Va. 33; Petty v. Fogle, 16 W. Va. 497; White v. Cook, 51 W. Va. 219; County Court v. Cottle, sheriff, 81 W. Va. 475; Land Co. v. Coal Co., 87 W. Va. 570.
The doctrine of equity jurisdiction to avoid a multiplicity of suits, and that of multifariousness in a bill, are closely related. The multiplicity of suits to avoid which equity may take jurisdiction must relate in some substantial way to the same subject matter. If the claims upon which the suits at law or in equity are predicated are separate and distinct in no way related to each other, it is well settled that equity will not take jurisdiction and settle them in one bill, on the ground that several suits would thereby be avoided. We can perceive no interest of Higgins Construction Company in whether plaintiff succeeds or fails in the assertion of his claim of $3,468 against the county court; or why it should be burdened with the delay and expense of that litigation; nor can we perceive any interest the county court may have in the con
“It (the bill) .will be treated as multifarious’ where there is a demand of several matters of a wholly distinct and independent nature, in the same bill, rendering the proceedings oppressive because it would tend to load each defendant with an unnecessary burden of costs by swelling the pleadings with the statement of the several claims of the other defendant or defendants, with which he has no connection. ’ ’ Hogg’s Equity Procedure, p. 206.
Where a bill unites several matters distinct in their nature, against several defendants who are unconnected in interest and liability, it is multifarious. Stuart v. Coalter, 4 Rand. 74; Crickard v. Crouch, 41 W. Va. 503. The bill cannot be sustained on the averment that it will avoid a multiplicity of suits; and ,we are strongly of • the view that it is multifarious.
The averments in the bill of equity jurisdiction in view of the facts therein set out are colorable. “Averments in a bill of facts showing equitable jurisdiction, which are'shown by other averments and the manifest object of the bill to be merely colorable, wiil not give equity jurisdiction, if the real cause of action is one for which the plaintiff has a 'full, adequate and complete remed3r at law.” Laidley v. Laidley, 25 W. Va. 525. We think the remedy of plaintiff on both his claims, $2,940 against Higgins Construction Company and $3,468 against the county court, is at law.
There is no equity in the bill; and it will be so certified to the lower court.
Ruling reversed.