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and, therefore, there was never any equity giving the court jurisdiction, though the bill itself, on its face, averred a good cause of action, can such a bill be retained for the determination of legal rights? This question is more difficult: What is it that gives to a court of equity jurisdiction of a cause? or in other words, how must a chancellor determine whether he has jurisdiction when the bill on its face is proper? Must he, before he can recognize his jurisdiction, demand the proof of the averments of the bill ? Must a bill to give jurisdiction present the proof along with the averments of the bill contrary to the first principles of equity pleading? Must the orderly processes of the court which require first the averments of facts, then the denial, then the proof, be set aside by the requirement that in order to jurisdiction, averments must be sustained by, and coupled with proof with the bill? If in the hot contest of a suit in equity, the result of the cause is finally determined in favor of the defendant, have all the proceedings leading up to that result been coram non judice? Has a court during all of those stages been determining a cause of which it has no jurisdiction because it finally turns out that the plaintiff's contention cannot be maintained ? Is it the bill, or the result of the litigation that determines the question of jurisdiction ? To hold otherwise than that the bill itself must be the determining factor would result in interminable complication, even though the result is reached by a seeming usurpation of jurisdiction; and while the question has been much mooted, and some courts inclined to doubt it, we think we are safe in maintaining that our own courts as well as those of Massachusetts, New York and other States, sustain this doctrine.

In the case of Ahl's Appeal, 129 Pa., 63; Atlantic Reporter, 18, p. 477, the Pennsylvania Court holds that where the bill makes a good case against each of the defendants, and proofs are had, and the plaintiff fails to sustain the averments of the bill against either of the defendants, the bill must be dismissed and cannot be retained for the prosecution of the cause: distinguishing the case from that of Slemmer's Appeal, 58 Pa., 155, where, under a prayer for general relief, relief was granted, though not specially asked for in the bill; and maintaining that where the bill shows no right to relief in equity the case has nothing on which to stand and must fall. In Ahl's Appeal the bill alleged a partnership with the defendant, prayed for a dissolution and account. On a reference, the master found no partnership existing, and, therefore, there could be no accounting, but it was discovered during the progress of the evidence that the defendant was indebted to the plaintiff in a large sum for loans and advances, and the lower court decreed payment of this on behalf of the plaintiff. Its action was the subject of review in the case and was reversed.

In the case of Case vs. Minot, 158 Mass., 577; 22 L. R. A., 536; the doctrine laid down in Milkman vs. Ordway, 106 Mass., 232, and the Woodbury Company vs. Marblehead Water Company, 115 Mass., 509, was said to be this: “That where a plaintiff in good faith, brings a suit seeking equitable relief, supposing and having reason to suppose himself entitled to such equitable relief, even though at the time when the bill was brought he had no right to relief purely equitable, yet the court will afford relief by awarding compensation.” “A fortiori, if the reason for denying the purely equitable relief occurs pending the suit.”

In this case, the bill was filed for an injunction by certain lessees against their lessors or their agents, for obstructing light and air on the premises by building a chimney, and pending the litigation, the complainant's lease expired, and the court retained the bill to assess damages for the complainant.

The view of the Massachusetts court seems to follow the case of Phillips vs. Thompson, 1 Johnson Chancery, 132, decided by Chancellor Kent---a case in which the bill was filed for the specifio performance of a parol contract, alleging a part performance of the contract to take the case out of the statute of frauds; there was a failure by the plaintiff in making out the existence of the contract as alleged, and the question to be determined was whether the bill should be dismissed, or whether injury sustained by the plaintiff should be decreed against the defendant by way of damages. The chancellor retained the bill and awarded an issue of quantum damnificatus to assess the damages which the plaintiff had sustained. This seems to be in accordance with the case of Nagle vs. Newton, 22 Gratt. 814, supra; Gordonsville Milling Company vs. Jones (Tenn.), 57 S. W., 630; 21 N. E., 95.

These cases are sufficient to show the diversity of view on this subject of the courts of other States, and are in no wise to be regarded as a full statement of all of the cases that might be cited on the subject, but merely as samples of those decisions.

Coming on to our own court, we find that a dictum in the case of Jones vs. Bradshaw, 16 Gratt., 355, has led to some erroneous conclusions as to the view of our court on this subject. In this case, the bill was filed asserting jurisdiction on the ground of discovery sought from the defendant. During the progress of the cause it was found, as to certain material facts, of which discovery was desired, the complainant had full proof, and as to others, they were merely pretences. Judge Robertson, delivering the opinion of the court, uses this language: "Where the bill alleges proper matter for the jurisdiction of a court of equity so that a demurrer will not lie, if it appears on the hearing that the allegations are false, and such matter does not in fact exist, the result must be the same as if it had not been alleged and the bill should be dismissed for want of jurisdiction." This case is distinguished in Walters vs. Farmers' Bank of Virginia, 76 Va., 12. A case of great interest to the profession, and one which has been much criticised.

A bill was filed against Mrs. Neal, a married woman, as the maker of a negotiable note, and her trustee, and Walters, her endorser, alleging that she was a married woman having separate estate, and praying that the separate estate might be subjected to pay it, or that the same might be paid by her or by her endorser. It turned out upon investigation, that Mrs. Neal, at the time of the filing of the bill, was the owner of no separte estate, and the question, therefore, arose whether the court, which could alone take jurisdiction of the cause on the allegation of her ownership of separate estate could retain it to enforce what was clearly a legal, and not an equitable, right of the complainant against Walters. This case presents the question plainly. The fact averred which gave the court jurisdiction is found to have been not a fact, and the legal right sought to be enforced is not against the same defendant against whom equitable rights were averred in the bill. The case would have been stronger if, after it was shown Mrs. Neal was possessed of no equitable estate, some legal right (were it possible) was discovered by the complainant against her; but here the jurisdictional fact was averred as to one defendant, and the retaining fact or the legal right to be enforced, was averred as to another defendant, Walters her endorsee. “The principle,” says Judge Staples,

Staples, in delivering the opinion of the court, “is almost universal that jurisdiction of the subject matter does not depend upon the ultimate existence of a good cause of action in the particular case—being once properly and lawfully acquired, no subsequent fact can defeat that jurisdiction.” And distinguishing this case from Jones vs. Bradshaw, supra, the judge further says: “The rule can have no application to a plaintiff who in the bona fide assertion of an equitable claim invokes the jurisdiction of a court of equity, but from some cause developed in the course of the investigation fails in establishing his title to the specific relief claimed in his bill. In every instance the court must determine upon the facts and circumstances of the particular case—whether it is better to leave the parties to their legal rights and remedies, or to go on and end the litigation by giving complete and final relief in the cause." If the court which decided Walters vs. The Bank, supra, had had the case of Jones vs. Bradshaw before it for decision, the decision would have been the same, for in the latter case the bill was clearly an attempted fraud on the jurisdiction of the court.

But the case of Walters vs. The Bank clearly overrules the dictum of Judge Robertson above quoted, for the point set


forth in the above passage from Judge Robertson's opinion was the exact question raised in Walters vs. The Bank, and was necessary to its decision.

The case of Stearns vs. Beckam, 31 Gratt., 379, and the elaborate opinion of Judge Burks, may be cited as sustaining .analogously the principles of Walters vs. The Bank, that though the court may refuse to specifically execute a contract for the sale of land at the instance of the vendees and for the reason that the proofs have disclosed a lack of equity, it will decree compensation. “Where the hill,” says Judge Burks, “is framed with a double aspect and contains a prayer for alternative relief, if the court is unable to execute the contract, it will go on to decree the repayment of the purchase money.”

"In Virginia this doctrine may be regarded as now firmly settled.” That failure of proof of the averments of a bill does not justify the dismissal of the bill, or justify the conclusion, therefore, that the court has no jurisdiction where the bill itself shows an equity, is well illustrated by the case of McConas vs. Easley, 21 Gratt., 23, where the purchaser of real estate filed his bill for the specific performance of a parol contract for the sale of the land, the defendant answered the bill alleging a different contract, and the evidence sustained the answer, and the court held that as the complainant had failed to prove his contract the bill might be dismissed, or he might elect to have the contract as proven by the defendant enforced, or have it rescinded. It is true that being a bill for the specific execution of a contract, it was an application to the sound discretion of the court, a judicial discretion, not as has been said to be exercised in an arbitrary and capricious way, but to be exercised and controlled by the established doctrines and settled principles of equity. But the point we are discussing is none the less plain because the question of the specific execution of a contract is controlled by a judicial discretion. Is the jurisdictional question less plain in this case on that account? A good cause of action is alleged in the bill, it is denied in the answer, and the proofs show that the averments of the bill have not been sustained-if so, has the court jurisdiction of the cause? Is

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