H. O. Middleton's Ex'r v. White

• Decision Date: 31 January 1872
• Citation: 5 W.Va. 572
• Court: West Virginia Supreme Court
• Parties: H. O. Middleton's Ex'r v. M. B. White.

5 W.Va. 572

H. O. Middleton's Ex'r

v.M. B. White.

Supreme Court of Appeals of West Virginia.

January Term, 1872.

1. Where a bill or declaration shows on its face proper matter for the jurisdiction of the court, no exceptions for want of such jurisdiction shall be allowed, unless it be taken by plea in abatement. Chapter 125, section 16, Code 1868.

2. The evidence of ail assignor of choses in action, which contains declarations and conversations with a deceased party, as to the justness of such claims, is incompetent. Code 1868, page 610, section 23.

3. Nor is the objection to the reading of such deposition waived by the consent of the defendants to take it; such consent only being to the taking, and an exception being endorsed at the time as to the incompetency.

4. An objection to a deposition, and endorsed thereon, for incompetency, is not deemed to be waived, by not being insisted on in the court below.

Bill and attachment in equity in the circuit court of Greenbrier county, filed at April rules 1867, by Moorman B. White, against H. 0. Middleton. The bill claimed that the plaintiff was assignee of C. A. Stewart, of certain claims, one bond and sundry fee bills, and that the defendant was a non resident of thestate, but had real estate within the jurisdiction of the court. At the September term 1868, the death of the defendant was suggested, and by consent, the cause was revived in the name of the executor, James E. Middleton, and the heirs of the original defendant. In April 1869, by consent, C. A. Stuart was made a party defendant. At the last mentioned term the executor demurred and answered that the original defendant was a resident of the state at the time of the institution of the suit. Nor service of process or order of publication appears in the record. Upon behalf of the plaintiff, the only deposition taken was that of the defendant and assignor, C. A.

January Term, Middleton's ExW vs. White. 1872

Stuart. He deposed that the claims were just and had been paid; that in 1866, he had presented the claims to H. 0. Middleton, who said that he could not then pay them, but would attend to them in a short time; and that his residence was in Annapolis, Maryland. This deposition was by consent. At its close, it was excepted to by defendants, because of incompetency, the witness being the assignor of choses in action, and the defendant H. 0. Middleton, being dead. (Acts 1868, page 10.)

For the defendants, the deposition of W. R. Woods was taken, tending to prove payment of the claims, and the residence of H. 0. Middleton, in Upshur county, at the institution of the suit. To the like purport was the testimony of James E. Middleton.

The court below decreed the payment of the demand to the plaintiff, and ordered the sale of certain real estate, in satisfaction thereof The defendants appealed.

Dennis for the appellant. Mathews and Matthews for appellee.

Maxwell J. This is an attachment in equity against the estate of H. 0. Middleton, as a non-resident defendant.

It is claimed that the court below erred in refusing to dismiss the bill, because Middleton was not a non-resident of the State.

So far as appears from the record, Middleton during his life time was never before the court, but after his decease, his personal representatives and heirs consented that the cause might be revived against them, and at the next term after the cause was so revived, the personal representative filed his answer, alleging among other things, that the defendant,...