Beecher v. Foster et als.
| Decision Date | 14 December 1909 |
| Parties | Beecher v. Foster et als. |
| Court | West Virginia Supreme Court |
1. Appeal and Error Law 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 can not be reviewed. (p. 457).
2. Same 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. (p. 457).
(Miller, President, absent.)
Appeal from Circuit Court, Ritchie County.
Bill by John S. Beecher against Thomas Foster and others. Decree for plaintiff, and defendant Anna T. Dellicker, executrix, appeals.
Affirmed.
William Beard, for appellant.
Charles A. Kreps, Hall & Better, and William S. Maclcey, for appellee.
This cause was in this Court once before, and the decision on the former appeal is reported in 51 W. Ya. 605. 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 $5,500.00. 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 and in Ohio, to J. P. Saunders, trustee, in trust to secure his creditors generally. Later, the trustee borrowed from Dellicker $2,000.00, and from the First National Bank of Parkersburg about $550.00, 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 $6,175.00, 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 acertain 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 $6,175.00 from the sale of the Ohio land, aggregating $7,-490.89; and held that it was the duty of the trustee to have paid out of the proceeds of sales of the Ohio land and personal property, certain enumerated debts, charges and expenses. The whole amount charged against these funds aggregated $3,-188.99. The court further found that, after charging this $3,-188.99 against the proceeds of the Ohio property "there remained the sum of $4,301.99 applicable to the mortgage debt of the defendant, L. B. Dellicker," and found that said Dellicker had received from the net proceeds of the Ohio property, including interest up to the date of the decree, $3,056.10 in excess of the amount to which he was entitled, and decreed that he should refund this excess to the general estate; but decreed that, inasmuch as Dellicker was entitled to be treated as a general creditor in the distribution of the general estate, on the basis of $1,873.01, the balance which the court found to be due him, as of the date of the general assignment, he was entitled to a recovery against Foster for the said sum of $3,056.10; and decreed that, in making settlement with Dellicker for the amount decreed against him, D. C. Casto, the special receiver to whom the estate had been committed, should give him credit for his distributive share, as one of the general creditors. The court also found that there was in the hands of Saunders, trustee, the sum of $1,398.93, which sum he was directed to pay into the hands of the special receiver, with interest thereon from March 30, 1891, principal and interest then aggregating $2,119.37. Dellicker appealed from this decree, and this Court reversed it in part and remanded the cause for further proceedings.
After the cause was remanded to the lower court, it was again referred to a commissioner for the purpose of ascertaining, among other things, "the balance due for which the decree should be entered against L. B. Dellicker, in accordance with the principles announced in the opinion and mandate of the Supreme Court of Appeals." The commissioner made his report in the
alternative as follows:
"Amount paid Dellicker of the sum to which. he was entitled, as shown by final decree
appealed from.............................. $1,873.01
Taxes paid on Ohio land.................... 305.5G
Commission on Ohio land................... 123.50 $2,302.07
Proceeds of sale of Ohio personal property.... 1, 315.89
Principal balance due from Dellicker........ 98G.18
Interest from April 11, 1889, to January 9, 1906 990.78
Total amount due from Dellicker as of January
9, 1906.................................... $1,976.96
Tt appears, however, from the final decree entered in this cause on the third day of November, 1899, that in ascertaining the balance for which a decree should be rendered against the said Dellicker, the Court in fact gave the said Dellicker the benefit of the said sum of $1,315.89 the proceeds of the sale of the personal property in Ohio, and charged him with the said sum of $305.56 taxes on the Ohio land; and your Commissioner is of opinion that in the foregoing statement the said Dellicker has been twice credited with the said sum of $1,315.89 and twice charged with the sum of $305,56; and that according to the spirit and intent of the decision of the Supreme Court of Appeals as your Commissioner understands it, the following is a correct statement showing the actual amount for which a decree should be rendered against the said Dellicker:
Amount paid Dellicker in excess of the sum
to which he was entitled................... $1,873.01
Commission on Ohio land.................... 123.50 $1,996.51
Interest from April 11th to January 9, 1906____ 2, 005.82
Total for which decree should be rendered
against Dellicker.......................... $4,002.33
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