Opinion
04-23-1886
BORDEN v. MURPHY and others.
E. W. Arrowsmith, for complainant. John H. Baches, for defendant Murphy.
E. W. Arrowsmith, for complainant.
John H. Baches, for defendant Murphy.
BIRD, V. C. The complainant filed a claim under the mechanic's lien law, brought suit thereon, made the builder and owner, at the time of filing his lien, parties, but not the owner at the time of issuing his summons. But the person who was the owner at the time last mentioned obtained leave to plead, and filed his plea, which upon the trial was stricken out, and the lien claimant recovered judgment. In a controversy in this court between these parties respecting the premises upon which the lien was claimed, and against which the complainant recovered a special judgment under the statute, the defendant Murphy attacks this judgment by way of cross-bill, and alleges that it was fraudulently obtained. The complainant moves to strike out the cross-bill because it contains no sufficient allegation of facts. The allegation is that the court permitted the defendant Murphy to file his plea, and then adds:
"And this defendant further shows that the issue so raised by the plea came on to be tried by the said court, * * * and that said court, upon motion, and at the special request of the said Charles C. Borden then and there made, and, as this defendant here charges, in combination and collusion with said William H. Hoover, * * * fraudulently, with intent to oppress and embarrass and defraud this defendant, struck out the plea so by the said Peter Baches pleaded as privy in estate, at the instance of this defendant, and the said court then and there refused and denied this said defendant, through the said Peter Baches, as such privy, to appear and defend the said suit."
Is there an issue raised in this allegation which demands the attention of the court? There was the intimation on the argument that the court erred in striking out the plea. If that were so, this court is not an appellatetribunal, nor does it ever, in any case, review errors of judgment in the courts of law. The only charge this court can consider is that of fraudulent combination to injure the defendant Murphy, and this, perhaps, ought to be rejected most promptly because of the manner in which it is pleaded; it being thrust in a paragraph only parenthetically, the main purpose of which paragraph is to allege that the court struck out the plea. But, passing this, and looking at the allegation of fraud, what is there to consider? Nothing, absolutely nothing, except that Borden, a party to the said suit at law, moved to strike out a plea filed against him, and that in making such motion he combined and colluded with the Hoovers, whose interest in the property had been sold under execution and conveyed, to injure and defraud the said Murphy. Combined to injure and defraud, in what particular, or by what means? How was the fraud charged to be perpetrated? What is there in this for the complainant in the original bill to answer? It may well be asked, what has he combined to do? It is not even alleged that he combined with the Hoovers that they should or should not do either this or that. The pleader may have intended to allege that the complainant in the original bill combined with the Hoovers that they should not resist his action at law on his lien claim, nor resist his motion to strike out the plea of the defendant therein; but, whatever his intention, his cross-bill discloses no such intention; and no party is called upon to answer an undisclosed intention.
Clearly, there is no substance in the cross-bill, and I shall advise that it be stricken out. The complainant is entitled to costs.