10 W. Va. 156 | W. Va. | 1877
William Tompkins, in 1855, instituted a suit in chancery in the circuit court of Mason county, to set aside as fraudulent a certain conveyance made by Abraham Wil
To this bill Stephens & Williams filed separate answers. The answer of Stephens has been lost or taken from the papers of the suit, but at what time, in no manner appears, and it is now admitted that it can not be found or restored. The answer of Williams simply refers to -and adopts this answer of Stephens, now lost, and denies in general terms all fraud, and says that the $9,866 was paid by the giving of negotiable notes, which he has transferred.
A large number of depositions were taken by both parties, and on the 23d day of April, 1858, “ the court being ot opinion that the main question in this cause is one pi’oper for a trial by jury, it was adjudged, ordered and decreed that an issue be, made up and tried by a jury at the bar of this court, to ascertain whether or not the deed of conveyance from Abraham Williams and Lucy E., his wife, to William J. Stephens, dated the 10th day of August, 1852, was made and executed on the part of said Abraham Williams for the purpose of delaying, hindering and defrauding his creditors, and whether said William J. Stephens, in receiving said conveyance, was cognizant of and participating in said fraudulent purpose of the said Abraham Williams, and upon the trial of this issue, the bill of the complainant and the answer of the defendants, William J. Stephens and Abraham Williams, may be read for the purpose of explaining the pretensions and claims of the respective parties; and the depositions taken and filed in the cause may be read in evidence in the trial of the said issue, provided the witnesses arc out of the commonwealth or unable to attend personally, from sickness or other infirmity.
In ordering the issue, the defendants, by their counsel, claimed that the answers of William J. Stephens and
Accompanying this decree was an opinion of Judge Summers, which sufficiently shows the character of the evidence then before the court, and the nature of the controversy. The following is a copy of this opinion :
“Tompkins obtained judgment in the Mason circuit court at October term, 1854, against Abraham Williams, for $4,744.88 with interest and costs. Execution on the judgment returned no property found. He filed his bill at March rules, 1855, charging that Williams was partner with Stephens and Friend in the West Columbia salt property; that he had made a pretended sale of his interest in the concern to Stephens; that this was either intended to hinder and defraud his creditors; that Stephens was privy to Williams7 purpose and design, and that Williams had taken the same on time as before, showing the sale to have been a sham. He asks that Williams7 interest be subjected to the judgment, or that if the sale be valid, a sufficient amount of the unpaid purchase money be appropriated to its payment. Williams and Stephens both deny fraud ; allege bona fide sale. They say that the purchase money has been paid by Stephens to Williams in negotiable paper, which was put into circulation and negotiated.
In Williams’ answer to bill of Thomas H. Friend (made part of this cause), he says the sale was upon credit. The contract of sale, dated 19th July, 1852, exhibited with Stephens’ answer), states the purchase money to have been $9,866, of which one thousand ($1,000) was payable 1st January, 1853; $3,000, 1st March, 1854 (with interest) ; the residue in five years, and to boar interest from January 1st, 1854. Stephens assumes all the debts so far as Williams is liable. Williams is to continue superintending the work until the 1st of November following, at $100 per month. The
The issue ordered by Judge Summers was tried during the war, before the Judge of the then circuit court of Mason, and the jury found “ that the deed of conveyance from Abraham Williams and Lucy, his wile, to William J. Stephens, dated the 10th day of August, 1852, was made and executed on the part of said Abraham Williams to William J. Stephens, for the purpose
At the April term, 1867, the counsel for Stephens and others made a motion to set aside said verdict, upon numerous affidavits, and the complainant filed several counter affidavits. Upon consideration whereof, the then Judge of the court, Judge Loomis, decreed, “ that there was not such a satisfactory trial of the issue that the court ought to act on the verdict rendered thereon. And the verdict on the said issue, rendered at the April term, 1863, was set aside and annulled.”
On November 21, 1870, an appeal from this decree was allowed on the petition of Tompkins’ ex’rx. The affidavits show that when this issue was tried in 1863, pending the war, that neither Williams nor Stephens was present, nor did they have any counsel present, though at the suggestion of plaintiff’s counsel, two young and inexperienced lawyers, one of them a brother-in-law of Stephens, did appear for the defendants and try the case before the jury. They introduced no witnesses for the defendants, but read to the jury the depositions filed in the cause, and cross-examined the plaintiff’s witnesses, and argued the case. At a former trial, in September, 1860, two witnesses who resided in Mason county, and one of them at the county seat, and perhaps others, had been examined for the defendants. The jury in this former trial had failed to agree. The trial of this issue was certainly very unsatisfactory; and if the affidavits had shewn that its unsatisfactory character had been occasioned by the pendency of the war, Judge Loomis would have been justified in setting the verdict aside. But the affidavits do not shew this; on the contrary, they shew that the unsatisfactory character of the trial was the result of utter indifference on the part of the defendant, as to what might be the result of the trial of this issue.
Again, it appears that Stephens had been in personal attendance at the sessions of the circuit court of Mason county on several occasions after this trial and before the April term, 1867, when he first moved the court to set aside this verdict of the jury. Would he, under these circumstances, have permitted this verdict to stand for four years without asking it to be set aside, if he had not then been utterly indifferent whether it stood or not ? It is true the defendants pretend to account for their giving no attention to the case because they say that some two or three years before the trial a proposition had been made to the plaintiff to take land in Tennessee for their debt. But this is a mere pretext; the proposition was not only not acceded to, but any consideration of it was promptly abandoned, and the plaintiff heard nothing more from the defendants upon the subject. It is true that Stephens, in his affidavit, does state that he went South about the time Memphis was taken, and he says that at the time of the trial he believes, and is almost certain, that he was in the military service of the United States, being embodied in the militia of the subjugated parts of the South ; and no able-bodied man was allowed to leave the military lines of the Union, in the locality where he was, without a pass, and passes were refused for some time to all, in consequence of continual fear of an attack from rebs.” But he does not pretend to say that this was his reason for not attending tothe trial of this issue. This excuse his having been detained in the South seems, from this mode of stating it, rather to have been an afterthought; and he is not even sure that he was so detained. He does not even allege that he sought a pass, or that he was prevented from so doing by his knowledge that no pass would be given. This was thrown in to have whatever weight the law might give it, the real reason for his neglect in preparing for the trial being that he did not think it necessary to make any pre-
Stephens, in his affidavit, states that after the first trial, in 1860, in which the jury was hung, he was at a subsequent court fully ready for trial, but plaintiff’s counsel begged him not to press the trial, “ and an affidavit was made, it was believed that the plaintiff could not go to trial safely in the absence of one of his counsel ; and it was believed by the affiant that this was the only ground urged for a continuance; it was believed by affiant that the Judge advised him to consent to the continuance, observing that it would be remembered, and that affiant should not be pressed to trial improperly or unprepared at a future time. Affiant met Major Parks, the plaintiff’s counsel, who was absent when the cause was continued, shortly subsequently, who expressed much satisfaction at the continuance, and pledged himself solemnly to the affiants that he, Parks, would not at any subsequent term ask him, affiant, to try the cause unless he was fully prepared and ready for the trial; and this proposition, so kindly made, was accepted and fully relied on by the affiant, who, satisfied that no advantage would be taken of him, went into the kind of business he was contemplating doing.” The statement of what occurred at the continuance of the case is not made positively, as it should have been, the affiant being present when the continuance was asked for; and if the affiant means to state that he believed that the Judge said that the defendants should not be pressed to trial if unprepared, without any reference to the use of due diligence on their part — in other words, without their consent — I feel assured that the affiant was either mistaken in what he says he believes the Judge stated, or that he misrepresents what was slated. No Judge would enter into such an arrangement with a party to a suit. And
But it is insisted that the granting or refusing a new trial is entirely within the discretion of the court below, and that its action cannot be reviewed by an appellate court, and many authorities in different States are referred to as sustaining this proposition. Whatever may be the practice in other States, it is well settled in this State, that the Court of Appeals may review the action of a circuit court in either granting or refusing a new trial in a common law suit. See Knox v. Garland, 2 Call., 241, Briscoe et al. v. Clarke, 1 Rand., 213, and Pleasants v. Clements, 2 Leigh, 474. And I see no good reason why the same practice should not prevail in reference to the granting or refusing of new trials on issues out of chancery.
But another reason, not relied upon in the court below, is now insisted on as a sufficient ground to set aside the
The answer of Stephens, in this case, has been either lost or taken out of the papers, and it does not appear whether it was lost before or since the trial in 1863. The answer of Williams refers to and adopts it, but
The fact that Judge Loomis was not asked to set aside this verdict because the answers of these defendants had not been read as evidence before the jury, raises the presumption that they were so read by consent; or, if not so read, that they contained nothing which ought to have caused the jury to render a different verdict. And as Stephens’ answer has been lost or taken out of the
I am satisfied that justice would not now be promoted by a new trial. Nearly twenty-five years have elapsed since the transactions occurred which are the subject of enquiry; most of the witnesses, who are numerous, must be dead, and those living must now have but a faint recollection of the facts to which they would be called to testify. The depositions taken when these transactions were fresh, are more to be relied on now than even the parol testimony of witnesses given after this lapse of time; and a careful examination of these depositions satisfies me that upon this evidence the verdict of the jury was correct. The decree complained of must therefore be reversed, and the appellant must recover of the appellees, William J. Stephens, Abraham Williams and The West Columbia Mining and Manufacturing Company, their costs expended in this Court, and the verdict of the jury must be approved and confirmed and the cause remanded to the circuit court to be further proceeded with according to the principles laid down in this opinion and rules of equity and justice.
Decree Reversed and cause remanded.