6 W. Va. 79 | W. Va. | 1873
This is a Bill of Injunction to a judgment rendered at law, upon a paper writing purporting to be the bond of the Plaintiffs and Defendant, Hiram Scott. The judgment at law against which the bill is filed is a judgment by default. Process was duly served on the Defendants in the action at law, but they failed to appear and make defence. The original bill filed in the cause avers that the paper or pretended bond on which judgment was rendered is not, and never was tire bond of the Plaintiffs or either of them; that the consideration of the supposed bond, was a small lot of land near the town of Eranlc-ford, in Greenbrier county, sold for the purpose of making the same a graveyard, to be paid for by sundry persons living in and near the town; that the defendant Hiram Scott, contracted with the said commissioners for the purchase of the lot, executed the aforesaid writing, and presented it to the Plaintiffs, who signed it with the
The Plaintiffs claim upon the facts- above stated, that although they could have filed their plea of non est fac-tum to the supposed bond in the action at law, and made complete and successful defence thereto — that still, their defence against said supposed bond is an equitable de-fence, of which they can avail themselves in a Court of Equity, as well as a Court of law; and not having availed themselves of their right and privilege of making their defence against the supposed bond, in the action at law, they have the right to be entertained in a Court of Equity, and upon the facts be relieved from the payment •of the judgment rendered upon the supposed bond. In support of this principle the Court is referred to the case of King vs. Smith and others in 2d vol. of Leigh’s lie-ports, page 157. The syllabus of that case reads thus; “P. agrees to join H. W., as his surety in a forthcoming bond, and executes and delivers the bond as an escrow, upon condition that K., shall also join in and execute the bond as co-security; and K., agrees to join as surety in the bond, and executes and delivers the same as an escrow, upon condition that O. "W., also shall join in and execute the bond as co-security; but O. W., never unites in •the bond. Held: that upon this state of facts, neither P., nor K., arc liable for any part of the debt in equity, .•any more than they would be liable for any part of it at law, where the facts would amount to proof of non estfac-trum.” In the above case there was execution awarded upon the forthcoming bond. King filed his bill of in
In the case of Meem vs. Rucker, to which I have before referred, on page 509. 10. Grattan’s Reports, Judge Lee in delivering the opinion of the Court, which was concurred in by all the other Judges, employs this language : “Row, that a party to whom a day and opportunity have been allowed to make his defence against a demand set up against him in a Court of law, but who has wholly failed to avail himself of them, will not be entertained in the Court of Chancery on a bill seeking relief against the judgment which was rendered against him in consequence of his default, upon grounds which might have been successfully taken in the Court of law, unless some reason founded in fraud, accident, surprise, or some adventitious ch’cumstance beyond the control of the party, be shown why the defence was not made in that Court, is a proposition which has been so repeatedly affirmed that it has became a principle and maxim of equity as well settled as any other whatever. It has been recognized and acted upon in very numerous cases in this court as well of ancient as of recent date. * * The rule has its foundation in wisdom and sound policy. It springs out of the positive necessity for prescribing some period at which litigation must cease. * * I think that private right and public interest alike require that it should be adhered to..” This language is clear and explicit, and when applied to ' this case determines
It is argued by the counsel for the Plaintiffs, earnestly, and with ability, that Courts of Equity grant relief to judgments at law upon void bonds, without requiring any excuse to be given for failing to make defence at law. The bond in question, however, was not void in its creation, but only voidable. I do not think Courts of Equity will, as a matter of course, grant relief against judgments on all void bonds. It is clear that equity will grant relief to judgments at law founded on a gaming debt, although the party failed to defend himself at law, and gives no good reason for such failure. This is decided in the case of Lucas vs. Waul et al., in 10 Smede’s & Marshalls Reports, page 157. See also Hil-liard on Injunctions, second edition, page 198. The jurisdiction of equity in such case is held and decided in the case of Woodson et al. vs. Barrett & Co., 2 Hen. & Munford, 80. In the case of Skipwith vs. Strother et al., 3 Randolph’s Reports 214, it is held that “A Court of Equity has jurisdiction to relieve against a judgment founded on a gaming debt, although the party
Does this alleged excuse show’ “ some reason founded in fraud, accident, surprise, or some adventitious circumstance beyond the control of Plaintiffs, why the defense was not made in the Court of law ?” I think not. On the contrary giving the most liberal construction to the
It is argued by Plaintiffs’ counsel that the notice to dissolve the injunction is too vague and uncertain, that it neither specifies the place or grounds of the motion— The notice is given by defendants, McClung and' Gordon, and service is accepted. In the notice it is stated that on “ the 15th day of July, 1871, we will move, before the Judge of the Circuit Court of Greenbrier county in chambers for a dissolution of an injunction granted you, &c.” The day is specified, but the place is not, except by the words “ before the Judge of the Circuit Court of Greenbrier county, in chambers.” Plilliard on Injunctions, page 100, says “Á motion to dissolve an injunction before answer, and without notice to the Complainant, is regular, if made on the ground that admitting the allegations of the bill to be true it contains no •equity.” This proposition with some limitation may bo true in this State, when the motion is made in Court, but, it is questionable, when the motion is made before the •Judge in vacation. The act of the Legislature passed February 24th, 1870, provides that a Judge of a Circuit •Court in which a case is pending, wherein an injunction