Beecher v. Foster

• Decision Date: 14 December 1909
• Court: West Virginia Supreme Court
• Parties: BEECHER. v. FOSTER et al.

(66 W.Va. 453)
66 S.E. 643

BEECHER.
v.
FOSTER et al.

Supreme Court of Appeals of West Virginia.

Dec. 14, 1909.

1. Appeal and Error (§ 1097*)—Daw of the Case—Second Appeal.

The decree of the Supreme Court of Appeals upon a question decided by the lower court and presented for review on appeal is final and irreversible; and upon a second appeal in the cause the questions decided in the former appeal cannot be reviewed.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4358; Dec. Dig. § 1097.*]

2. Appeal and Error (§ 1192*)—Remand-Effect of Mandate and Opinion.

When a cause is remanded by the Supreme Court of Appeals to the lower court for further proceedings to be had therein according to the opinion of the appellate court, and a doubt arises as to the meaning and effect of the mandate and opinion, it may be ascertained by reference to the bill and other proceedings in the cause.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4647; Dec. Dig. § 1192.*]

(Syllabus by the Court.)

Appeal from Circuit Court, Ritchie County.

Bill by John S. Beecher against Thomas Foster and others. Decree for plaintiff, and defendant Anna T. Dellicker, executor, appeals. Affirmed.

William Beard, for appellant.

Charles A. Kreps, Hall & Beiler, and William S. Mackey, for appellee.

WILLIAMS, J. This cause was in this court once before, and the decision on the former appeal Is reported in 51 W. Va. 605, 42 S. E. 647. It is again here on an appeal granted to Anna T. Dellicker, executrix of L. B. Dellicker, deceased, from a decree pronounced by the circuit court of Ritchie county on October 20, 1906. The principal question presented is, whether or not, in entering the decree complained of, the lower court followed the mandate and opinion of this court pronounced on the former appeal. Only so much of the history of the cause will be here repeated as is necessary to an intelligent understanding of the questions now presented for our determination.

L. B. Dellicker, appellant's testator, held a mortgage upon land of Thomas Foster, situate In the state of Ohio, to secure $5,500. There were prior liens upon this land. After giving this mortgage to Dellicker on his Ohio land, Foster then conveyed all his property, real and personal, situate in West Virginia

[66 S.E. 644]

and in Ohio, to J. P. Saunders, trustee, in trust to secure his creditors generally. Later, the trustee borrowed from Dellicker $2,000, and from the First National Bank of Par-kersburg about $550, and with this borrowed money he paid off the liens on the Ohio land which were prior to Dellicker's mortgage. He then repaid Dellicker and the bank out of the general trust fund. In 1890 John S. Beecher, a creditor, brought this suit against Foster and his trustee, praying, among other things, for an accounting of the trust fund by the trustee. Other creditors filed answers, and John L. Hall, Samuel H. Beiler, partners trading as Hall & Beiler, and W. S. Mackey filed a cross-bill; and apparently all of Foster's creditors were brought into the suit. Prior to the suit the trustee had sold the Ohio land for $6,175, just enough money to pay the Dellicker mortgage and interest, not allowing for commissions and taxes paid on it, and paid the mortgage with the proceeds; and charged his commissions for selling the land, and taxes and other expenses paid on account of the land, against the trust funds in his hands belonging to the general creditors. The cause was referred to a commissioner to state certain accounts. Exceptions were taken to the report by Hall & Beiler, and Mackey, and also by the trustee. The cause was heard upon the commissioner's report and exceptions thereto, and a final decree pronounced on November 3, 1899. The court did not expressly sustain, or expressly overrule, any of the exceptions; but did, in effect, sustain some of the exceptions and overrule others, by ascertaining the amounts of money concerning which there was controversy. The language of the decree in disposing of the exceptions is as follows, viz.: (The court) "is further of the opinion to and doth sustain the said several exceptions so far as the same cover the matters and things in said report hereby decreed and corrected, and as to all matters therein the said several exceptions are hereby overruled." The decree then proceeded to ascertain the amounts due the several creditors, and gave them a recovery for the respective amounts against said Foster. The court found that the trustee had realized $1,315.89 from the sale of the personal property in Ohio, and...