Leachman v. Adamson , 5 W. Va. 443 ( 1872 )

Berkshire P.

In the view taken in this case, it will only be necessary to consider the 10th assignment of error, as it comprehends the whole merits of the controversy.

The only allegation in the bill, which constitutes a ground for the jurisdiction of a court of equity, is the charge of fraud and collusion on the part of the appellant Leachman, and S; S. Webster (the latter being the agent of the appellee) in the procurement of the judgment, now sought to be set aside, in the’ Circuit Court. And the question now is whether the charge is made good by the testimony appearing on the record.

It must be kept in view, that the bill and answers were filed prior to the Code of this State, and the answers being •sworn to, we must be governed as to tbe weight and effect of' them, by the rule of law which prevailed at that time. And the established rule was, that where an answer was sworn to •and was'responsive to the bill, it would require the testimony •■of two witnesses, or one witness and strong corroborating circumstances — equivalent to the testimony of another — to overthrow such answer. In this case, the charge of fra,ud and collusion is distinctly made against Webster — who was acting as the agent of the appellee — and Leachman in procuring the judgment in question, but is explicitly and particularly denied in the separate answers of each of them. It is obvious that the independent fraud of Webster in the premises, towards his principals, Adamson & Cook, could not avail them. But to affect Leachman, and enable them to prevail in their •suit, it must be shown that he likewise participated in the alleged fraud.

From the record it appears that the charge of fraud is proven against Leachman by one witness only, and upon the most careful consideration, I do not find enough in the circumstances of the case to bring it within the rule referred to, and to countervail the effect of his answer and that of Webster’s, although there may be found in the record, indications of negligence or mismanagement of the case, at law,' by the plaintiff’s agent, and that injustice has been. done them. And it is with reluctance, therefore, that I have been brought to the conclusions indicated.

The decree must be reversed with cost here, and the bill dismissed, but without cost in the Circuit Court.

The other judges concurred,

Decree Reversed.