Beard v. Arbtjckle.

• Decision Date: 07 September 1878
• Court: West Virginia Supreme Court
• Parties: Beard v. Arbtjckle.

13 W.Va. 732

Beard

v.Arbtjckle.

Supreme Court of Appeals of West Virginia.

Decided September 7, 1878.

j878 1. A case, in which the Appellate Court dismissed an appeal and August lerm. supersedeas from and to decrees in a court of equity, because the appeal and supersedeas ought not to have been allowed to said decrees, if at all, without being allowed to other decrees in the cause, made therein after the decrees, to which the appeal and supersedeas were allowed. (See opinion of the Court.)

2. Counsel practicing in the Appellate Court requested, to distinctly state in the petition for appeal, supersedeas or writ or error, what decree, order or orders, or judgment of the court, is asked to be reviewed.

Appeal from and supersedeas to a decree of the circuit court of Greenbrier county, rendered on the 25th day of June, 1877, in a cause in chancery then pending in said court, in which Hannah R. Beard was plaintiff, and Matthew Arbuckle and others were defendants, allowed on the petition oi said Matthew Arbuckle.

Hon. Homer A. Holt, Judge of the Eighth Judicial Circuit, rendered the decree complained of.

The case is ^sufficiently stated in the opinion of the Court.

Robert F. Dennis, for appellant, cited the following authorities:

19 Gratt. 458; 12 W. Va. 611; 27 Gratt. 740 and cases there cited; 19 Wend. 79.

Mathews & Mathews, for appellees, cited the following authorities:

9 W. Va. 695, 700; 5 Cal. 149; 22 Iowa 230; 11 La. Ann. 455; 3 Gill & J. 450; 28 N. Y. 508; 18 Md. 245; 44 Barb. 636; 9 W. Va. 424; Code W. Va. ch. 134, §5; 6 W. Va. 196; 16 Gratt, 134; 10 W. Va. 298; 6 W. Va. 1; 3 Call 200; 9 Gratt. 142.

Raymond, Judge, delivered the opinion of the Court:

The plaintiff filed her bill, in the circuit court of the county of Greenbrier, against Matthew Arbuckle and others, to enforce a lien by judgment against said Arbuckle's realty, to which he claims to be entitled as assignee. The bill, after setting out the judgment and her claim to part of the amount thereof by assignment, states and alleges, that there are various other judgments against defendant, Arbuckle, and that he had executed deeds of trust on his lands, in whole or in part. The bill states the names of the persons who obtained said judgments, and also the names of the trustees and cestuis que trust, in the said deed of trust. The bill further states, that " certain of said judgments are now for the benefit of James Knight, and certain others of them have been transferred, and assigned to, and are now for the benefit of, the said Alex. F. Mathews, but of this she knew nothing, and the said Knight and Mathews can answer their claims fully, if any they have; and reference is here made to a list or abstract of said judgments, duly certified from said lien docket herewith filed, marked exhibit No. 4, and prayed to be taken and made as part of this bill."

The bill alleges, that said Arbuckle is seized, and possessed in fee, of various tracts of land in said county, viz: the Creigh place, on which he resides, the Ditson place, &c, and that all of said lands are bound by the lien of that portion of said judgment or undertaking assigned to her, and by the lien of such of the other judgments and deeds of trust as have not been paid off, and are still valid and subsisting debts; that plaintiff is informed and alleges, that as to one of said tracts, the Deen place, there is a balance of the purchase money unpaid &c., and for which the land is bound by a vendor's lien. The bill makes a large number of persons parties defendant, such as the judgment creditors, and the trustees and cestuis que trust in said deed of trust, by name, as well as others claiming an interest in some of said debts. The bill prays, that the plaintifPs said lien be enforced, &c, and that there be an account taken &c.

It appears, that afterwards the Judge of said circuit court, in vacation, "upon motion of the plaintiff," referred the cause to J. McWhorter, one of the commissioners of said court, to ascertain, state and report: First, all the lands owned by said Arbuckle; Second, an account of all the liens of every kind upon the real estate of said Arbuckle with their dates, dignities, amounts, and priorities; Third, the order, in which such liens are encumbrances on each of the tracts of land; and Fourth, any other matter deemed pertinent" &c.

It also appears by an order of the said court, entered in the cause, that on May 28, 1877, Alex. F. Mathews, C. Aultman & Co., Robert P. Lake, W. R. Snyder, Jacob Huff nagle and James C. McPherson, guardian ad litem for E. A. Gregory, filed their separate answers to the plaintiff's bill.

It further appears, that on the 14th day of June, 1876, the cause was recommitted to said commissioner, with instructions to hear such evidence, and take such further proof of debts, as should be adduced before him, and to re-open and restate his original report in accordance therewith, so far as necessary.

It also appears, that on the 13th day of November, 1876, the said circuit court made and entered a decree in the cause, in which it is recited:" The subpoena having been returned, regularly executed upon all the defendants, and this cause having been set down for hearing, came on this the 13th day of November, 1876, to be heard upon the process, returned executed as aforesaid, the answer of the infant defendant, E. A. Gregory, by James C. McPherson, who is hereby appointed her guardian ad litem, the several answers of the defendants Robert P. Lake, Austin Handley, Jacob Huffnagle, C. Aultman & Co., W. 11. Snyder, Caroline Bloomer, Alex. F. Mathews, general replication to said answers, the the petition of James Knight, filed by leave of court, who upon said petition is hereby made a party defendant in this cause, the petition and answer of James Miller, general replication to said answer, exhibits, depositions, the interlocutory orders and decrees, hereinbefore entered in vacation and in term, the original or first, and the supplemental or second, report of commissioner McWhorter, made and returned in pursuance of said orders and decrees, the exceptions to said supplemental report, taken by both plaintiff and defendant, M. Arbuckle, the motion of said Arbuckle for a continuance of this cause, and affidavits filed in support of said motion, and the arguments of counsel. "Upon consideration whereof it is adjudged, ordered and decreed, that the said exceptions to said report of commissioner McWhorter, and the said motion for a continuance, be and they are hereby overruled, and that the said second or supplemental report, which is but a substitute with certain additions and modifications for said first, or original, report be and is hereby confirmed."

The decree then proceeds to ascertain and determine the several liens against the lands of said Arbuckle, the amounts thereof, and the persons entitled thereto respectively, and the priorities thereof. The decree then pro-' ceeds: "and the defendant, James Miller, who claims to have a debt against said Arbuckle, as a lien upon a tract of land of eighty acres, which has not yet. been ascertained and fixed, here entering by bis attorneys his consent on the record, that said tract may be sold without waiting to have his said debt judicially ascertained and decided, it is therefore further adjudged, ordered and de- creed, that the said parties receive from the said M. Arbuckle the said several sums of money respectively, with interest on each of said sums from the 10th day of November, 1876, until paid, and their costs, by them in this suit expended; and unless the same be paid within ninety days from the date of this decree, then Alexander P. Mathews, trustee in the first and oldest deed of trust on said lands, and John W. Harris, either of whom may act, who are hereby appointed special commissioners for the purpose." The decree then directs and authorizes the said special commissioners to sell the lands in the bill and proceedings mentioned, or so much thereof as may be required "to pay the debts, interest and costs, aforesaid, and prescribes the time, place and terms of sale, cfrc.

It is then further recited and stated in said decrees: "and upon motion of the defendant, M. Arbuckle and by counsel of the plaintiff, and other creditors, parties to the suit, the said second or supplemental report is recommitted to commissioner J. M. McWhortcr, with leave to the defendant, M. Arbuckle, to establish, by sufficient and competent testimony, any credits, payments or offsets upon the debts, reported against him as aforesaid, within sixty days from the date of this decree." It is afterwards stated and provided in the same decree, and at the conclusion thereof, as follows, viz: "but this decree is without prejudice to the debt, due to A. S. Skaggs, which was overlooked by commissioner McWhorter, or which is due to Austin Handly, if it has been paid by him as security of said Matthew Arbuckle, as set out in the answer of Austin Handly, filed in this cause; and said commissioner McWhorter is directed to report to this court the amount still due on the judgment, rendered in favor of A. S. Skaggs, if anything, to whom due, and the priority of said debt, and what proportion thereof, if anything, has been paid by said Austin Handly as security for the said Matthew Arbuckle."

It also appears, that afterwards on the 7th day of February, 1877, in vacation, the said Arbuckle...