#### *Slack v. Wood.

July Term, 1852,

Lewisburg.

Injunctions — Against Judgments — Necessity for Taking Advantage of Remedy at Law — Laches.*—An injunction to a judgment at law dissolved as improvidently granted, without answer, though the bill charges that the judgment was recovered without appearance or defence for money which the plaintiff in the judgment alleged he had paid as surety, though he had not in fact paid one cent of the money, but the same had been paid by another surety, against whom there was a joint judgment with the plaintiff at law ; and that of this fact the plaintiff in the bill had no knowledge until after the judgment; and could not therefore have defended himself at law.

This was an injunction to a judgment recovered by Henry H. Wood against John Slack in the Circuit court of Kanawha. Slack had been the high sheriff of Kanawha county, and Wood, James T. Swindler and *31others were his sureties. Several judgments had been recovered against Slack and his sureties for the defaults of one of his deputies. Upon these judgments executions issued which were returned by the sheri ff as paid by James T. Swindler and Henry H. Wood. Subsequently Wood gave Slack notice that he would ask for a judgment against him for the amount of these executions as having been paid by himself; and Slack not appearing, there was a judgment in favor of Wood against Slack for the amount of 318 dollars 61 cents, with interest thereon from the 24th of May 1847, until paid and his costs.

After this judgment had been recovered, Slack applied for an injunction thereto, on the ground that Wood had not paid one cent of the money for which the judgment had been obtained; but that it was paid by the other surety, James T. Swindler; and he alleged that these facts came to his knowledge after the judgment was rendered, and that consequently he could not by any possibility have made his defence at law. *The injunction was granted; and the defendant Wood without answering the bill moved to dissolve the injunction as improvidently awarded; and the court sustained the motion. From this decree dissolving the injunction, Slack applied to this court for an appeal, which was allowed.

Parks, for the appellant.

B. H. Smith and Doddridge, for the appellee.

*

Injunctions — Against Judgments — Necessity for Taking Advantage of Remedy at Law — Laches.—To entitle, one to relief in equity against a judgment at law, it is not sufficient that injustice has been done him. He must have been guilty of no laches and have done everything/ required of him to render effectual his defence at law. For this proposition the principal case is cited and approved in the following cases: Allen v. Hamilton, 9 Gratt. 257; Hudson v. Kline, 9 Gratt. 384, 387; Perkins v. Clements, 1 Pat. & H. 153; Green v. Massie, 21 Gratt. 361; Richmond Enquirer Co. v. Robinson, 24 Gratt. 552, and note; Goolsby v. St. John, 25 Gratt. 153, and *note:*Yuille v. Wimbish, 77 Va. 315; Dey v. Martin, 78 Va. 4; Rosenberger v. Bowen, 84 Va. 663, 5 S. E. Rep. 697; Canada v. Barksdale, 84 Va. 746. 6 S. E. Rep. 10; Brown v. Chapman, 90 Va. 175, 17 S. E, Rep. 855; Hyre v. Hoover, 3 W. Va. 15; Sperry v. Gibson, 3 W. Va. 525; Vance v. Snyder, 6 W. Va. 31; Shields v. McClung, 6 W. Va. 89; Morehead v. De Ford, 6 W. Va. 320; Harvey v. Seashol, 4 W. Va. 125; Black v. Smith, 13 W. Va. 800; Bias v. Vickers, 27 W. Va. 466; Bloss v. Hull, 27 *W.*Va. 509; Ensign Mfg. Co. v. McGinnis, 30 W. Va. 542, 4 S. E. Rep. 788; Grafton, etc., R. Co. v. Davisson, 45 W. Va. 14, 29 S. E. Rep. 1029; Smith v. McLain, 11 W. Va. 669; Sayre v. Harpold 33 W. Va. 557, 11 S. E. Rep. 17; *foot-note*to Haseltine v. Brickey, 16 Gratt. 116; monographic *note*on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518. See, in accord with the principal case, Cabell v. Roberts, 6 Rand. 580; Collins v. Jones, 6 Leigh 530; Faulkner v. Harwood, 6 Rand. 125; Haden v. Garden, 7 Leigh 157; Oswald v. Tyler, 4 Rand. 19; George v. Strange, 10 Gratt. 499; Meem v. Rucker, 10 Gratt. 506; Wallace v. Richmond, 26 Gratt. 67, and note; Ferrell v. Allen, 5 W. Va. 43; *31Knapp v. Snyder. 15 W. Va. 434; Alford v. Moore, 15 W. Va. 597.

Judgments at Law — When Equity Will Grant New Trial. — In Zickefoose v. Kuykendall, 1 W. Va. 29, It Is said: “It Is admitted that after-discovered evidence, to afford a proper ground to awarding a new trial, whether the application he made to a common-law court, or to a court of equity, mnst (1st) have heen discovered since the former trial; (2d) he such as reasonable diligence on the part of the party seeking the newtrial could nothavesecured ata former trial; (3d) he material in its object and not merely cumulative, corroborative or collateral: (4th) must be such as ought to produce an opposite result on the merits. Read’s Case, 22 Gratt. 946; Adams v. Hubbard, 25 Gratt. 129; *Slack v. Wood, 9 Gratt. 53;*Brown v. Speyers. 20 Gratt. 296; Gillilan v. Ludington, 6 W. Va. 128; Arthur v. Chavis, 6 Rand. 142.’’ See in accord, citing the principal case, Smith v. McLain, 11 W. Va. 658.

LEE, J.,

delivered the opinion of the court.

Wood recovered a judgment against Slack the complainant in the Circuit court of Kanawha county for the sum of 318 dollars 61 cents, being for money claimed to have been paid by him as one of the sureties of Slack in his official bond as sheriff of Kanawha county, together with interest and costs of suit. The proceeding which resulted in this judgment was by notice in writing under the act of assembly in which it was alleged that sundry judgments specified in the notice, had been recovered against Wood as such surety aforesaid, and that he had been compelled to pay the amount specified in the notice, on account thereof. The notice was served upon Slack, but he failed to appear and contest the plaintiff’s right to recover; and the court, on hearing the evidence adduced by the plaintiff, rendered judgment in his behalf for the amount above stated. Slack subsequently filed this bill in the Circuit court of Kanawha, stating the recovery of said judgment against him, and exhibiting a copy of the record of the proceeding in which it was had: And he alleged that he had been informed and believed “that Wood had never paid one cent of one of the judgments set out in his aforesaid notice, but that the said judgments being not against the said Wood alone, but against” himself (said Slack) and his securities in his official bond, they were paid by James T. Swindler *(then deceased), another of his said sureties. He further alleged that those facts came to his knowledge after the said judgment had been rendered, and that he had had no knowledge or intimation of them until after that period; and that consequently he could not by any possibility have made his defence at law.

The bill made Wood and the sheriff of Kanawha parties defendants, and prayed an injunction to restrain the collection of the said judgment, and such other and further relief as justice and equity might require. The injunction prayed for was allowed.

The defendants appeared by counsel, and without filing an answer to the bill, gave notice that they would move to dissolve the injunction as improvidently allowed, at a future day of the court. And subsequently the motion having been made, the court by its order did dissolve the injunction on the ground assigned: And to this decree a supersedeas has been allowed.

The grounds on which a court of equity will interfere to grant relief against a judgment at Jaw in the nature of a new trial, are confessedly somewhat narrow and restricted. It is not sufficient to show that injustice has been done, but it must appear also that it was not occasioned by the inattention of the party complaining: And a bill seeking relief of this character is watched by equity with extreme jealousy. Bateman v. Willoe, 1 Sch. & Lef. 201. In delivering his opinion in that case, Dord Redesdale said that “Rules are established, some by the legislature, some by the courts themselves, for the purpose of putting an end to litigation; and it is more important that an end should be put to litigation than that justice be done in every case.” Ib. 204.

In the case of Floyd v. Jayne, 6 John. Ch. R. 479, Chancellor Kent states the settled doctrine and practice of the court of equity as well as of courts of *law, to be, that a party is not entitled to relief after verdict upon testimony which with ordinary care and diligence lie might have procured and used upon the trial at law: And he adds that “it would be establishing a grievous precedent, and one of *32great public inconvenience, to interfere in any other case than one of indispensable necessity'and wholly free from any kind of negligence.”

This doctrine has been fully recognized in this court by repeated adjudications. Beirne v. Mann, 5 Leigh 364; Oswald, &c. v. Tyler, &c., 4 Rand. 19; Faulkner’s adm’x v. Harwood, 6 Rand. 125. And to the same effect are De Lima v. Glassell’s adm’r, 4 Hen. & Munf. 369; Turpin v. Thomas, 2 Hen. & Munf. 139; Tapp v. Rankin, 9 Leigh 478; Donnally v. Ginnatt’s adm’r, 5 Leigh 359; Haden v. Garden, 7 Leigh 157; Turner v. Davis, Id. 227; Auditor v. Nicholas, 2 Munf. 31; Arthur v. Chavis, 6 Rand. 142; Fenwick v. Macmurdo, 2 Munf. 244. In the case of Faulkner’s adm’x v. Harwood, it was held that a court of equity will not grant relief merely because injustice has been done: The party applying for a new trial, to entitle himself to it, must show that he has been guilty of no laches; that he has done everything that could reasonably be required of him to render his defence effectual at law. And the reasons for establishing and enforcing this rule and practice are given by Judge Carr, in his opinion, with his accustomed clearness; and they seem to apply in all their force to the present case. The complainant alleges that at the time of the rendition of the judgment at law against him he was ignorant of the fact that the money due on the judgments recovered against him and his sureties had been paid by James T. Swindler, and that no part whatever had been paid by Wood. But he does not allege that he used due diligence or made any efforts or enquiries before the trial at law to obtain information upon this subject. And *it would appear that by the exercise of reasonable diligence, and by making proper enquiry in the proper quarters, he might have been readily led to discover whether Wood had in fact paid any of the loneys claimed to have been paid by him for the complainant, and if any, the amount thereof; and of this information when obtained he could have fully availed himself in his defence in the court of law. His failure to institute any such enquiry when served with Wood’s notice would seem to be exactly that sort of inattention and laches on his part which should serve to debar him from any claim for relief in a court of equity against its consequences. The court is therefore of opinion that the injunction to the judgment at law upon the grounds assigned in the bill was improvidently granted; and that there is no error in the order of the court dissolving the same; which is accordingly affirmed, with costs to the appellee.

Decree affirmed.