Arnold v. Slaughter Et Ux

• Decision Date: 23 April 1892
• Citation: 36 W.Va. 589,15 S.E. 250
• Court: West Virginia Supreme Court
• Parties: Arnold et al, v. Slaughter et ux.

15 S.E. 250

36 W.Va. 589

Arnold et al,

v.Slaughter et ux.

Supreme Court of Appeals of West Virginia.

April 23, 1892.

Pleading—Answer Verified by one Defendant — Sufficiency — Appeal — Commissioner in Chancery—Exceptions.

1. When no exception or objection was taken in the court below, so far as the record shows, to the filing of an answer in chancery, because not verified by affidavit, or because the affidavit is defective, it is too late to make the objection in the appellate court.

2. Where the bill is sworn to by only one of a large number of plaintiffs, the affidavit of one defendant to the answer will generally be regarded as sufficient, and, if the plaintiffs desire to probe the consciences of all the defendants, the objection should be taken in the circuit court and they should file interrogatories, or ask the assistance of that court in requiring all the defendants to answer under oath.

3. As applied to an answer in chancery, exceptions are allegations in writing, and they should state the particular points or matters with respect to which the complainant considers the answer insufficient as a response to the bill, or scandalous or impertinent, or improperly verified where verification is necessary. The object of exceptions is to direct the attention of the court to the points excepted to, and to take its opinion thereon before further proceedings are had, to the end that, if the answer is insufficient, a better answer may be compelled, or, if scandalous or impertinent, that the scandalous or impertinent matter may be expunged, or, if improperly verified, that the affidavit or jurat may be corrected.

4. The evidence taken before a commissioner in chancery, and upon which he bases his report, does not become a part of such report unless exceptions are taken during the period whenthe report lies in his office, and he has sent up the evidence upon which the exceptions are based; or he may, of his own motion, where lie has a doubt as to the weight of testimony upon a particular point, send up the evidence upon that point; but, in either event, the commissioner himself must certify that he has sent up the evidence in such manner as to make it manifest by the report itself that the evidence has been sent up. But any party may except to such report at the first term of the court to which it is returned, or, by leave of court, after said term; and there can be no doubt that the court may, on its own advice, or on motion of a party, direct the evidence to be sent up; but this is a matter within its own discretion, and the appellate court will not interfere with its exercise of such discretion unless it plainly appear that manifest injustice and injury have resulted.

5. The case of Greer v. O'Brien, (W. Va.) 15 S. E. Rep. 74, approved, and the principles there decided reaffirmed.

(Syllabus by the Court.)

Appeal from circuit court, Fayette county.

Suit by Arnold, Abney & Co. and others against John W. and Sonora J. Slaughter. From the decree Arnold Abney & Co. appeal. Affirmed.

Payne & Payne, for appellants.

Flournoy & Price, for appellees.

Lucas, P. This was a suit instituted by the plaintiffs Arnold, Abney & Co., who are now the appellants in this court, and for P. H. Noyes & Co., Gates & Chamberlain, Handley & Co., and Henry N. Bailey, creditors of John W. Slaughter, against said Slaughter and his wife, Sonora J. Slaughter, for the purpose of recovering certain debts due' to said parties respectively. It is charged in the bill that John W. Slaughter had contracted these debts while he was insolvent; that he began merchandising at Oak Hill, about 1884; that in 1880 he made valuable improvements on his wife's lands; that on the 10th of September, 1887, he failed, and made an assignment, his liabilities being $1,875, his assets about $600. The prayer of the bill was that these debts might be enforced as a charge upon two acres and a half of land owned by the defendant Sonora J. Slaughter, upon which it was alleged the said John W. Slaughter had made valuable improvements, amounting to about $600 in value. The bill was taken for confessed as to said John W. Slaughter, and the cause referred to a commissioner, to report the liens upon said lands, the debts due from the defendant John W. Slaughter, what real estate he owned at the time the suit was instituted, what improvements had been made upon said lot, whether John W. Slaughter was indebted at the time of making them, and to what extent, how the improvements had been paid for, and requiring the clerk to convene the creditors holding liens against the said lands. This order of reference was made on the 9th of March, 1888. On that day the defendant tendered her separate answer, sworn to by her husband, to the filing of which the plaintiffs objected; but the objections were overruled by the court, and the answer was ordered to be filed, and it was replied to generally. The plaintiffs proceeded to take the depositions of three or four wit nesses, which, when completed, were filed in the clerk's office on the 30th of July, 1888. The commissioner to whom the cause had been referred did not take up the matters referred to him under the order of reference until the 16th of April, 1891, completed his report on the 24th of April following, and, after retaining it in his office 10 days for exceptions, returned and filed it in the clerk's office on the 7th of May, 1891. On the 23d of May following the creditors filed three exceptions to the report as follows: "First. The plaintiffs and P. H. Noyes & Co. and others, creditors named in the bill, except to all the findings of Commissioner Brazie in the foregoing report, except the second and fifth, because such findings are contrary to the evidence before him, and because there was no evidence before him which justified such findings. Second. The plaintiffs Arnold, Abney & Co., and also P. H. Noyes & Co., Gates & Chamberlain, Hand-ley & Co., and Henry N. Bailey, except to the foregoing report, because their debts, respectively, were not allowed by the commissioner as charges against the real estate of Sonora J. Slaughter, defendant, to the extent of the improvements put upon said real estate by her husband, J. W. Slaughter. Third. For other manifest errors.''.-The report of the commissioner, on which these exceptions were indorsed, was as follows: " Your commissioner, to whom was referred the chancery suit now pending in your honor's court, wherein Arnold, Abney & Co. are plaintiffs and S. J. Slaughter and J. W. Slaughter are defendants, would most respectfully report that, after convening the creditors of the defendants, and taking depositions, and maturely considering the evidence adduced, your commissioner finds and reports as follows: First. That there are no liens existing against the tract of land mentioned in the bill of complaint. Second. Your commissioner finds that the debts due from the defendant J. W. Slaughter, to whom due, and the amounts thereof, are set out in the trust deed from J. W. Slaughter to J. W. St. Clair, trustee, which is filed as an exhibit in this suit, and hereby referred to as a part of this report. Third. The defendant J. W. Slaughter was not possessed of any real estate at the time this suit was instituted. Prior to that time he had be«n the owner of several tracts of land, but they had been all sold before the commencement of this suit. Fourth. The improvement put upon the tract of land mentioned in plaintiffs' bill was an additional story placed upon the house there situate; value of improvements about $600, and were paid for. by the defendant Sonora J. Slaughter out of her separate estate. Fifth. The defendant J. W. Slaughter was indebted at the time the improvements were made on the land mentioned in the bill, but the amount of such indebtedness your commissioner has been unable to ascertain. Sixth...