Bank Of Union v. Nickell

• Decision Date: 31 January 1905
• Court: West Virginia Supreme Court
• Parties: Bank of Union v. Nickell, Admr., &c, et al.

57 W.Va. 57

Bank of Union

v.Nickell, Admr., &c, et al.

Supreme Court of Appeals of West Virginia.

Submitted January 17, 1905.

Decided January 31, 1905.

1. Decedent's Estate Suits to Settle Witness Disqualified.

If a creditor's suit is brought to settle up a decedent's estate and a creditor of the decedent files a claim against the estate, before the commissioner to whom the case is referred to convene the creditors and state an account therein, involving purely personal transactions between the creditor and deceased, the creditor, under s. 23 ch. 130, c. 1899, is incompetent to give evidence as to such claim. (p. 59.)

2. Limitations New Promise in Writing Requirements of.

Where a debt is barred by the statute of limitations, and a new promise or acknowledgment is relied upon to remove the bar, there must be an express promise to pay, or an acknowledgment of the debt unaccompanied by reservations or conditions, from which an implied promise will arise, and the writing ought to be such a one, as if declared upon, would support the action. (p. CO.)

3. Commissioners in Chancery Erroneous on Face Exceptions.

To take advantage of a report of a commissioner in chancery on the ground that the evidence taken before him is insufficient to support his findings, it is necessary that the report be excepted to; but where the report is erroneous upon its face, the error can be taken advantage of without such exception. (pp. 61, 62)

Appeal from Circuit Court, Monroe County.

Bill by the Bank of Union against R. B. Nickell, administrator of C. P. Nickell, and others. Decree for plaintiff and defendants appeal.

Modified.

Rowan & Boggess, for appellants.

J. D. Logan and John Osborne, for appellee.

Sanders, Judge:

The Bank of Union brought a chancery suit in the circuit court of Monroe county against R. B. Nickell, admr. of C. Patton Nickell. deceased, for the purpose of settling up his estate. Upon the maturity of the bill the case was referred to M. J. Kester, commissioner in chancery, and thereafter the commissioner made and filed his report, as directed by the decree, and, among other things, reported a debt in favor of James B. Fisher for the sum of $109.78, with interest from January 12th, 1899, and another for the sum of $251.62 in favor of J. I). Logan, special receiver in the case of W. W. Brown vs. Geo. Lemon's heirs et al.The report was excepted to by R. B. Nickell, admr., in so far as it allowed any part of the debt claimed by Fisher, first, because there was no proof of the debt, and, second, because, if proven, it was barred by the statute of limitations. On the 23rd day of October, 1903, a decree was entered sustaining said exception endorsed as to the Fisher debt, as to the sum of $18.00, and overruling the exception as to the residue, and giving a recovery in favor of Fisher for $91.78, with interest from Jan. 12, 1899, and a recovery in favor of J. D. Logan, spec- ial receiver, for the sum of $251.62. Thereafter R. B. Nickell, admr., et al, filed a bill of review against the Bank of Union, et al, asking that the final decree of October 23, 1903, adjudicating the said claims of Fisher and Logan, receiver, be reviewed and reversed, and, on the 18th day of March, 1904, the defendants demurred to the bill of review, which demurrer was sustained and said bill was dismissed, and the defendants filed their petition for an appeal from the final decrees entered at the October term, 1903, taking recoveries in favor of Fisher and Logan, receiver, and the March term, 1904, dismissing the bill of review.

The first question is, should the court have sustained the exception to the commissioner's report as to the Fisher debt? The commissioner certified with his report all the evidence that was taken before him, and among the witnesses who testified relative to this claim was Fisher, the creditor. Objection was made to his evidence upon the ground that his claim was based upon a personal transaction had with C. Patton Nickell, who was deceased at the time of the giving of his evidence, and under section 23, chapter 130, of the Code, this objection is based, and is clearly sound, But it is claimed by Fisher that without his testimony that there is sufficient evidence to support the finding of the commissioner as to his claim, But we find that there is no evidence that could, from any standpoint of view, be considered as sufficient to establish his debt, the only other witnesses being Miller and Cummings, neither of whom seem, from their evidence, to know anything; about this transaction; and the letter of C. Patton Nickell, which was introduced before the commissioner and filed along with his report, and relied upon by Fisher to prove his claim, certainly does not do so. All that he says in the letter is: "I herewith enclose you check for $15.00, it is the best I can do for you at present." Now, there is no statement here, except by implication, that he, at that time, owed him anything else, and if so, there is nothing to show what the amount of it is. Therefore, the commissioner could not have based any allowance to Fisher upon this letter. There should be evidence, before a recovery can be taken, to show that the decedent, Nickell, was indebted to Fisher, and if so, in what sum, and there is no evidence from which this can be fairly inferred, to say nothing about that full proof which should be required to establish claims of this character.

Then, again, the exception on the. ground that Fisher's claim is barred by the statute of limitations is well taken, the entire account being made in the year 1895, and the years preceding, and this suit being brought on the 28th of April, 1902, more than live years since the last item in the account appears to have been charged. Not one of these items appears to have been charged later than March 7, 1895, But it is contended for, on behalf of Fisher, that the letter of C. Patton Nickell, filed before the commissioner, constitutes a new promise or acknowledgment of the debt, such as to remove the bar of the statute of limitations, and that in computing the time it should date from the 12th day of January, 1899, the date of the letter. This letter is as follows:

"Sinks Grove, W. Va., Jan. 12th. 1899. Mr. J. B. Fisher, Dear Sir: I enclose check for $15,00, it is the best I can do for you at present. I just happened to get it yesterday. Hope this will...