47 W. Va. 45 | W. Va. | 1899
Harrison Zinn, Lorenzo M. Zinn, Milford C. Gibson, and T. F. Lanbam filed their bill in the circuit court of Preston County against M. W. Dawson and Lloyd C. Shaffer, sheriff of said county, praying an injunction to restrain said Shaffer and Dawson from collecting certain executions set forth and described in their bill in favor of said Dawson.
Now, even if the plaintiffs were honestly mistaken as to the time when the action at law against them was to be heard, and for that reason failed to set off their judgments at the trial, yet here is a plain, complete, and adequate remedy at law, by which they could, on motion, have had their judgments set off against the judgment of plaintiff, Dawson, and for that reason they should not have been entertained in a court of equity. In the case of Faulconer v. Stinson, 44 W. Va. 549, (29 S. E. 1011), this court savs: “But in Sayre’s Adm’r v. Harpold, 33 W. Va. 553, (11 S. E. 16), it is held that mere insolvency of a judgment debtor will not alone justify an injunction to a judgment to let in a set-off which might have been pleaded; this seems well settled,” — citing High. Inj. § 132; BartCh. Prac. 22; Hadson v. Kline, supra. Barton, in his Chancery Practice (page 22), quotes from the opinion of Staples, J. (Linke v. Fleming, 25 Gratt. 707), as follows: “A very interesting question has been raised and discussed by the learned counsel in this case. It is whether the insolvency of a judgment creditor is a sufficient ground for a court of equity to decree a set-off against him upon which the debtor might have successfully relied by way of defense in the action at law, but which he failed to do, without any circumstances of excuse for such failure. This question has never been settled in this court, nor can it be considered as settled by the decisions of foreign courts.” And Mr. Barton adds: “The generally received opinion is that where the party had his opportunity to the set-off at law, and gives no excuse for not having done so, the mere fact of insolvency will.not entitle him to relief in equity against the judgment.” In the case at bar the insolvency of Dawson cannot be regarded as material, for the reason that his
Applying these principles to the facts in this case, my conclusion is that the mere insolvency of Dawson, in the circumstances, did not entitle the plaintiffs to relief in equity. Neither was the excuse offered to account for their failure to plead their judgments as a set-off in court of law sufficient to entitle them to the relief prayed for. The court erred in overruling the demurrer to the plaintiffs’ bill, and perpetuating the injunction. The decree complained of is therefore reversed, and the bills dismissed.
Reversed.