49 W. Va. 7 | W. Va. | 1901
Slingluff, Johns & Co. brought a chancery suit against Gainer and Sturm and others to enforce the lion of a judgment on land of the defendants, in which suit there was a reference to a commissioner to convene the holders of all liens against the land sought to be subjected, and the commissioner made report of such liens, and upon such report a decree was entered specifying the liens chargeable upon the land, and subjecting the land to sale by commissioners appointed by the decree. This decree adjudicated the matters involved in the suit and fixed the rights of the parties. R. B. Morgan was made a defendant by the bill, which stated that F. L. Sturm, one of the owners of the land, had executed a deed of trust on the land sought to be subjected to Downs, trustee, to secure R. E. Morgan in moneys thereafter to be advanced to Sturm. The commissioner reported that no proof had been adduced before him to show that any money had been furnished by Morgan to Sturm under the said trust, and no debt was reported by the commissioner or allowed by the decree to Morgan under said deed of trust. At a later term of the court Morgan appeared in the case and asked permission to file a pleading calling itself a “petition and answer,” but the court refused to allow it to be filed, and Morgan then took this appeal.
The chief point of complaint of Morgan is, the refusal of the court to allow him to file the said petition. It sets up that Fred. L. Sturm had executed the deed of trust to secure Morgan for
Shall we denominate the said matter relied upon by Morgan to get rid of the decree as under the head of accident or mistake? Many book definitions would rank it under either head. I would rank it under the head of accident, within the meaning of chancery jurisdiction to give relief under the head of accident. 1 Am. & Eng. Ency. L. (2 Ed.) 277; 1 Story Eq. Jur., s. 78; 2 Pom. Eq. Jur., s. 823. The jurisdiction of chancery uo give relief because of accident is very ancient. 1 Am. & Eng. Ency. L. (2 Ed.) 278. Hogg’s Eq. Principles 24, gives a good definition.
Counsel for the plaintiffs make the point that to allow Morgan relief would run up against the rule that a return of a sheriff of process is conclusive, and that Morgan cannot be allowed to contradict it. I do not question that such rule, where it properly applies, is safe and well established. Rader v. Adamson, 37 W.
If Morgan was not served, he can show that fact, but not merely that fact, as that would simply contradict the return, but in connection therewith he ought to be allowed to show that he and another man of the same initials resided in Marion County, and that particular summons was served on that other man, Bufus E. Morgan.
If in fact Morgan was not served, how is he to get relief P He could not by this petition treat it as an answer. Being after a final decree, it was too late. That decree adjudicated the principles of the cause, settled the rights of the parties, was an appealable decree, a final decree. It left nothing to be done except to carry it out. Core v. Strickler, 24 W. Va. 694; Shumate v. Crockett, 43 Id. 490; Lewisburg Bank v. Sheffey, 140 U. S. 445; Keystone Iron Co. v. Martin, 132 U. S. 91. The Core-Strickler Case holds that a bill of review lies to such a decree. How, then, can an answer do ? Moreover, the fa.ct which it sets up, want of service, has nothing to do with the pleadings in the case. A cross bill is not proper, as that concerns matters in litigation in the suit, whereas this want of process, this accident, is not in the pleadings, but supervenient. West Virginia Oil Co. v. Vinal, 14 W. Va. 637; McMullen v. Eagan, 21 Id. 234, 247. But this petition has not the form of a cross bill. It makes no parties, calls for no relief, except reversal, as if the cause of reversal were upon the record. It could not be held an answer calling for affirmative relief, because that is a cross bill, and it brings in a matter foreign to the matters contained in the pleadings of the ease, and besides, contains no prayer for relief, and makes no parties, as such an answer must do. Goff v. Price, 42 W. Va. 384; Martin v. Kester, 46 Id. 438. And also as an an
Therefore, I can see no error in rejecting the petition. That rejection will not bar a suit for this relief, nor will this decision. It is claimed that the petition should have been received, for' the reason that Morgan might have the surplus from the sale after paying other debts. The time for that had not come. Before sale there could be no surplus. Application for surplus must have a surplus to stand on. We cannot reverse a decree for a mere possible or problematical surplus, not yet existent, which may never come into being.
Appellant says that the court should have reversed the decree for several errors in the record, namely, defective service on the trustee, the commissioner’s reporting debts without evidence, his not returning evidence of debts, that he did not report that the
Morgan made a motion in the circuit court to give time to
We therefore affirm the decrees of the 15th day of February, 1898, and 14th day of October, 1898, but without prejudice to Morgan to bring any suit to set aside the said decree of the 15th of February, 1898, or to make any motion in the circuit court to reverse that decree for any cause proper under chapter 134 of the Code.
Affirmed.