Hickman v. Painter

1.. A bill is filed by H., to set up a lost receipt, winch tlie defend- • ant, P., had given H. as constable, for certain claims put in the said constable’s hands for collection. On demurrer, Held : I. Equity has jurisdiction, notwithstanding courts of law exercise jurisdiction in the same' class of cases. II. The court relieves against the accident of the loss, by setting up the evidence of the debt. III. The court, having taken jurisdiction for one purpose, it will adjudicate the full merits. 2. To such bill, the clerk appends his jurat, thus: “ Sworn to in open court by the ifiaintiff.” Held : I. That as the plaintiff swore to the bill in open court, and as the bill specifically alleges the loss of the receipt, the oath, thus taken or made, is sufficient to answer the requirement of the law as to a lost instrument. II. That as the statute prescribing the form of the jurat for the verification of pleadings, does not make it obligatory to follow that precise form, but authorizes that it should be to the same “effect" it is not necessary, when the pleading is sworn to in open court, that there should be the clerk’s jurat of the precise verification made; the appellate court will presume the verification to have been in effect that prescribed by the statute. III. The jurat of the clerk in this case is sufficient. 3. Where the order of the circuit court, referring a cause to a person to take, state and settle an account of indebtedness, desig- • nates him “ a master commissioner of this caart,” and there is nothing in the record to show he was not one of the commissioners of the court. Held : I. The appellate court will, in such case, consider Mm regularly appointed and qualified as such commissioner. II. As such commissioner, he is authorized not only to take and state the account referred to him, but also to take depositions. 4 Where an answer does not allege new matter constituting a claim for affirmative relief, and does not pray for affirmative relief, hut merely alleges payment and set-off to the plaintiff’s demand, it does not necessitate a reply to controvert the allegations, as required by sections 35 and 36, chapter 125 of the Code, and proof thereof should he required; especially so, when the answer is in no part taken for confessed. 5. Where the record is irregular and confused, and the proof somewhat vague, the appellate court will not reverse a decree in such a case, unless it is clearly wrong.

Appeal from, and supersedeas to, a decree oí the circuit court of the, county of Fayette, rendered on the 29th day of August 1871, in a cause in chancery in said court then pending, wherein John Hickman was plaintiff, and Anderson Painter and others were defendants, allowed upon the petition of the defdenants below. Hon. H. L. Gillaspie, a former Judge of said court rendered the decree complained of. Moore, Judge furnishes the following • statement of the case: Hickman filed his bill in chancery at the June rules, 1868, holden for the circuit court of Fayette county, against Anderson Painter and others, alleging, substantially, that in the year 1859 or 1860, he placed in the hands of said Painter, who was then constable for said county, “ a number of small notes and accounts against divers persons to warrant for and collect, which notes and accounts amounted in all to something more than $300.00,” for which he took Painter’s receipt as constable, and that the said receipt ■ “ has been lost or misplaced ” so that the plaintiff “ cannot now designate -the amounts of each or even all of the same, or even all of the persons from whom they were due, as he has only his memory to look to in the matter; that most of the claims, if not all of them, were due from persons entirely solvent, and as he“ believes and charges have been paid to said Painter;” that he remembers some of the debtors, and can approximate their debts, “ which are as follows, viz: A note against John B. Jones for. about $20.00; one or two notes against T. S. Robson for about $30.00; one against Allen Meadows for about $20.00; the others are not remembered, but the aggregate amount was fully $300.00, most, if not all of which plaintiff “ charges was collected by said Painter, but no part of the same has ever been paid to your orator;” that “ at the time said claims were placed in the hands of said Painter, James Montgomery, Joseph Faulkner, John Wingrove, and Thomas S. Robson were the sureties of said Painter as constable, as will more fully appear by reference to the official bond of said Painter,” (a copy of which bond he filed with the bill); that Joseph and John Wingrove have departed this life; that the administration of the estate of Wingrove was committed to R. B. Cassady, sheriff of said Fayette county; and that Wm. Myles has qualified as the administrator of Jos. Faulkner; that “ Painter is liable for said claims, or at least to account for them so far, as they have, or could have been collected” &c.; plaintiff therefore prays, “that said Painter be compelled to discover what has been done with said claims, what has, or what could have been collected, and what disposition he has made of the same; and that he and his securities be compelled to pay over to plaintiff the amount for which they are liable; and for “such other, further and general relief as is consistent with equity.” The bill contains the usual prayer for parties to be made defendant, and compelled to answer upon oath. To the bill is appended the following: “Sworn to in open court by plaintiff, W. T. Tim-berlake, clerk circuit court, Fayette county”. On the 22d day of September 1868, the bill having been taken for confessed, the circuit court, on motion of the plaintiff, ordered “that H. W. Brazie, a master commissioner of this court, do take an account of the debts referred to in this cause, placed by the plaintiff in the hands of the defendant, Painter, and that he do state and settle the accounts between the parties, and report,” &c. On the 23d day of August 1869, the said commissioner filed a report in the cause, stating “that said account cannot be taken unless the parties appear before him, and that A. Painter has failed to appear after notice, and therefore the account cannot be taken, unless he do appear.” That report was excepted to, because “not made in obedience to an order of court, and because it was not made on a subject referred to the commissioner.” On the said last mentioned day, the court acting upon said report, ordered : “that an attachment be sued forth against A. Painter, for his contempt in failing to obey the summons of commissioner H. W. Brazie,” * * “unless,” &c. The said commissioner gave notice to said Painter, that on the 14th day of February 1870, at his office, he would take and state said account, and required him to appear with all his papers relating to the cause. ’ On the 23d day of February 1870, Anderson Painter, filed in the clerk’s office of said court his answer, with exhibits of counter claims and sets-off,to said bill, which purports to have been sworn to in open court, February 24, 1870. The answer admits that plaintiff placed in defendant Painter’s hands as constable, as alleged in the bill, certain claims, the exact amount defendant did not recollect, “ but is quite sure that all the claims taken together did not amount to the sum of $300.00, that the claims set forth in plaintiff’s bill, to-wit: the claim of $20.00 on John B. Jone.s, the claim on T. S. Robson for $30.00, and on Allen Meadows for .$20.00, the following disposition was made of them, to-wit: the $20.00 claim on Meadows was returned by this respondent to plaintiff, and is now in his possession ; the debt on Jones aforesaid was only for the sum of $9.38, and has long since been paid to said Hickman, and over paid as will be seen by an order drawn, upon this defendant by plaintiff, said order bearing date March 10, 1859,” (and filed as part of this answer), “ being for the sum or $13.67, which order Avas duly accepted by this defendant; besides said Jones placed in the hands of this defendant various fee bills on the said Hickman amounting to $ — —, (which fee bills are filed as part of this answer). That the “claims mentioned in plaintiff Js bill on T. S. Hobson have long since been paid by this defendant to plaintiff, to-Avit: in the year 1859 ; and the respondent' says that all the claims, at any time placed in his hands as constable as aforesaid by plaintiff, have either been paid to said plaintiff, or regularly returned to the elerk’s office “ no property fov/nd,” as required in such cases by laAv, and Avere against persons wholly insolvent.” Hespondent further denies owing plaintiff anything, or being in any respect liable to him as an officer as aforesaid; but charges that the plaintiff “ is indebted to him for official sendees rendered him, and for sums advanced for him, and one saddle of value $20.00, in the sum of $60.00,” (as seen by an account filed AAÚth the answer) and also in certain other sums stated in the ansAver and exhibits filed therewith. The defendant Painter also filed the plea of the statute of limitations, and on the 23d day of February 1870 the conrt gave said defendant leave to file his answer, which he did, and the plaintiff filed his replication thereto. On the 23d day of August 1870 the court ordered the commissioner theretofore appointed to proceed to take the account in this cause, and further ordered him “to take any proof offered by either party in reference to the claims and demands mentioned in this cause, and to examine either party on oath if required, or if he may think it necessary; and that he shoAV Avhat amount is due to either of the parties from the other,” and report his proceedings. The commissioner filed his report January 20, 1871, with the exceptions thereon endorsed, which report shows that both parties were present at the taking of said account, and that after considering the depositions filed with the papers of the cause, theretofore taken, and those taken before him, the commissioner found due plaintiff from defendant Painter $300.00, with interest from 1859 until paid, subject to a credit of $14.40 of same date, leaving a balance due said plaintiff of $285.60, interest to February 20, 1871, (eleven years, one month, twenty days) $188.50; total due to date $474.10.” The defendant excepted to the said last report, because: 1st. It is contrary to the evidence. 2d. It does not pursue the order directing it. 3d. It is informal. 4th. That there is no testimony before the commissioner, or filed in the papers of the cause, showing any indebtedness of the defendant. On the 28'th day of August 1871, the following order was made by the court: “ This cause came on to be heard upon the exceptions, filed to the affidavit made by the plaintiff to the allegations of 'the bill; and the demurrer to the bill, after argument of counsel, was overruled by the court.” On the 29th day of August 1871, the court rendered the following decree : “This cause came on, this 29th day of August 1871, to be heard upon the bill of the plaintiff, regularly matured for hearing, and the exhibits filed therewith, and the answer of Anderson Painter, with replication thereto, and depositions of witnesses, and the report of commissioner H. W. Brazie, with the exceptions thereto, and was argued by counsel. Upon consideration whereof, it is adjudged, ordered and decreed, that said report be confirmed, except as to $54.60 paid in the year 1859. It is further adjudged, ordered and decreed, that the plaintiff recover of the defendants, Anderson Painter, James Montgomery and R. B. Cassady, administrator of 'John Wingrove, deceased, to be levied of the goods and chattels of John Wingrove, deceased, in the hands of his administrator to be administered, Thomas S. Robson, and William Myles, administrator of Joseph Faulkner, deceased, to be levied of the goods and chattels of Jos. Faulkner, deceased, in the hands of his administrator to be administered, in the sum of $394.81, with interest thereon from the 29th day of August 1871, until paid, and his costs by him about his suit in this behalf expended, including an attorney’s fee of $25.00. cited : Code W. Va., chap. 130, §23; 1 Greenl. part 3, chap. 2, § 329; Lyons v. Miller, 6 Gratt. 427. The plaintiff’s bill is maintainable upon two distinct grounds: 1st. It is a suit upon a lost instrument: Shields v. Commonwealth, 4 Rand. 541; Kerney v. Kerney, 6 Leigh 478; Hunter et al. v. Robinson, adm’r, 5 W. Va., 272. In the case of Cabell v. Megginson, a bill upon a lost instrument was sustained without an affidavit: 6 Munf. 202. But if an affidavit is required, it can be filed, or the bill sworn to, at any time before final hear-hearing: Thornton v. Stewart, 7 Leigh 128. In the case at bar the bill shows, that it was duly sworn to. An affidavit, if sworn to in open court, is sufficient without b\\e jurat: Cleveland v. Stanley, 13 Ind. 549. 2d. It is a bill for a discovery: Chichester v. Pass, 1 Munf. 98; Seott v. Osborne, 2 Munf. 413; Lyons v. Miller, 6 Gratt. 427; Coffman v. Sangston, 21 Gratt. 263. If the bill shows ground for a discovery, which is not proved in the case, the defect cannot be reached by demurrer or answer upon the merits. The jurisdictional facts must be put directly in issue, either by plea, or specific denial in the answer : Pryor v. Adams, 1 Call 382, 391.