Billingsley v. Manear

• Decision Date: 07 April 1900
• Citation: 35 S.E. 847,47 W.Va. 785
• Court: West Virginia Supreme Court
• Parties: BILLINGSLEY v. MANEAR et al.

35 S.E. 847

47 W.Va. 785

BILLINGSLEY

v.MANEAR et al.

Supreme Court of Appeals of West Virginia.

April 7, 1900.

EQUITY—PLEADING—RULE TO ANSWER— REFERENCE.

1. When a demurrer to an original or amended bill is overruled, the defendant is entitled to a rule to answer the bill, which need not be served.

2. Where a demurrer to a bill in equity is overruled, and no day is given the defendant in which to answer, the court cannot properly order a reference of the cause to a commissioner to ascertain the amount of the plaintiff's demand, where the object of the bill to subject land to sale is to ascertain the liens thereon and their priorities.

(Syllabus by the Court.)

Appeal from circuit court, Marion county; J. M. Hagans, Judge.

Bill by Morgan Billingsley against A. R. Manear and others. Decree for plaintiff, and defendant Fanny Manear appeals. Reversed.

Haymond, Butcher & Hartley, for appellant.

W. S. Meredith, for appellee.

ENGLISH, J. This is the second time this cause has been brought before this court for consideration. On the 9th of April, 1898, the demurrer interposed to the plaintiff's bill was sustained in part, and the cause remanded to the circuit court, with leave to amend. After the mandate had been entered in the circuit court, the cause was remanded to rules, with leave to file an amended bill therein, which was accordingly done. On the 8th of December, 1898, the defendant Fanny Manear filed her demurrer to the plaintiff's second amended bill filed at the October rules, 1898, in which demurrer the plaintiff joined; and the demurrer, after argument by counsel and consideration by the court, was overruled, and, without giving the defendants a rule to answer, or specifying a day in the order on which the defendants might appear and answer, the court referred the cause to a commissioner in chancery to ascertain what real estate was owned by Fanny Manear, where situate, and by what title held; all the liens and charges thereon, the orders of their priorities, and to whom owing; what improvements, if any, the defendant A. R. Manear has put or caused to be put on the real estate known as "Lot No. 19, " situated in the town of Fairmont; how much, if any, such improvements have enhanced the value of said lot 19; what debts A. R. Manear owed before he made such improvements, to whom he owed the same, and when he contracted them. Now, the matters referred to the commissioner by this decree would, no doubt, be proper, if the allegations contained in this second amended bill were sustained by proof, or the bill taken for confessed, but by thisdecree no rule was given the defendants to plead, or day fixed on which they might answer, as required by section 30 of chapter 139 of the Code. That it was not the intention of the appellant, Fanny Manear, to allow this decree to go by default, is apparent from the fact that in her answers to the original and amended bills filed by plaintiff she contests every claim therein asserted; yet, without giving the appellant a day in which to answer, the matters referred to said commissioner were ascertained and reported, the liens on said lot and their priorities ascertained, the report confirmed, and a decree rendered directing the sale of said lot No. 19. The appellant claims that the court erred in referring said cause to a commissioner in chancery without giving petitioner a day to answer, after overruling her demurrer to the second amended bill. Counsel for the appellee relies on the ruling in the case of Foley v. Ruley, 43 W. Va. 513, 27 S. E. 268, which holds that: "When a demurrer to a bill is overruled, a time reasonable under the circumstances of the case must be given for answer; but, when a time is fixed, objection to its shortness must be made, else the point is waived. A mere order of reference, deciding nothing, may be made without such answer." In that case, however, a day was given the defendant in which to file his answer. Br...