Blankenship v. Mongini, (No. 6104.)

CourtSupreme Court of West Virginia
Citation143 S.E. 301
Docket Number(No. 6104.)
Decision Date08 May 1928

143 S.E. 301


(No. 6104.)

Supreme Court of Appeals of West Virginia.

May 8, 1928.

(Syllabus by the Court.)
[143 S.E. 302]

Appeal from Circuit Court, Raleigh County.

Suit by George Blankenship against Andy Mongini. From a decree for defendant, plaintiff appeals. Reversed and remanded.

C. M. Ward and Carl C. Sanders, both of Beckley, for appellant

W. H. Rardin and W. W. Goldsmith, both of Beckley, for appellee.

HATCHER, J. Blankenship sold a lot to Mongini with covenants of special warranty and "the right to convey." Part of the consideration for the lot was paid in cash, and a vendor's lien reserved for the balance. The vendee failed to pay the balance, and this suit was brought to subject the lot to sale under the vendor's lien. In Mongini's answer to the original bill, he admitted the purchase of the lot, but alleged that Blankenship had no title to and no right to convey it, and that the title thereto the heirs of Ida S. Bolen. deceased, and prayed that his deed be canceled and his payment on the purchase price refunded. Blankenship filed what he terms an amended bill, alleging that he purchased the lot at a judicial sale in the suit of Farley v. Bolen et al., that he obtained an absolute title to the lot by virtue of his deed from the commissioner in that suit, and that at the time he conveyed it to the defendant he had a perfect title to it. Mongini answered the amended bill, and alleged that Blankenship did not acquire title to the lot by reason of his purchase in the Farley-Bolen suit. Blankenship then filed a second amended bill in which he detailed at length the proceedings in the Farley-Bolen Case, and filed copies of certain papers and decrees in that suit. Mongini countered with another answer, in which he again avers that Blankenship did not have any legal or equitable title to the lot by reason of the proceedings in the Farley-Bolen suit. The defendant further alleged that he had never been allowed to take possession of the property nor receive any rents or profits from' it but did not state who had withheld the lot from him.

Defendant contends that each of his answers claiming affirmative relief against the plaintiff were based in part upon new matter; that plaintiff filed only a general replication to the first answer; that no replications were filed to the other answers; that no issue was raised upon the allegations in his second and third answers; and that by reason of section 36, c. 125, Code, proof was not required, and his allegations must be taken as true. Section 36 provides:

"Every material allegation of new matter in the answer constituting a claim for affirmative relief, not controverted by a special reply in writing, shall for the purposes of the suit, be taken as true, and no proof thereof shall be required."

Where such an answer Is verified, section 38 of the same chapter requires the plaintiff to verify his special reply thereto. The material allegation calling for relief is the same in each one of the answers, to wit that the plaintiff bad no title. Each answer was verified. Plaintiff's first amended bill was supported by an affidavit, and may therefore be treated as the special reply in writing controverting defendant's claim for affirmative relief required by the statute. Hale v. Hale, 104 W. Va. 254, 258, 139 S. E. 754. The second amended bill was not verified, and therefore cannot be so regarded. In the first amended bill plaintiff denied the allegation of no title in defendant's answer, and set forth the manner in which he acquired his title. The subsequent charges of no right to convey,, made in defendant's second and third answers, are simply repetitions of the charge in the first answer, and may be treated either as surplusage or as sufficiently traversed by plaintiff's first amended bill. That first denial put the defendant on proof.

The sale to Blankenship having been made under a decree of a court, and the sale confirmed, Mongini admits that Blankenship's title is protected under section 8, c. 132, Code, against any errors which are not jurisdictional. See Chapman v. Branch, 72 W. Va. 54, 58, 78 S. E. 235. He attacks the jurisdiction of the court to make the sale as follows:

(1) He charges that the...

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7 cases
  • Adkins v. Adkins, 10786
    • United States
    • Supreme Court of West Virginia
    • April 30, 1957
    ...or procedure in the exercise of that jurisdiction, is not jurisdictional error.' Point 2, syllabus, Blankenship v. Mongini, 105 W.Va. 530 [143 S.E. 301]. 2. 'A decree entered in a cause, in which all interested parties are before the court, and upon a bill upon which such decree would have ......
  • Aldrich v. Aldrich, 12139
    • United States
    • Supreme Court of West Virginia
    • October 22, 1962
    ...of law or procedure in the exercise of that jurisdiction is not jurisdictional error.' Blankenship v. Mongini, 105 W.Va. 530, pt. 2 syl., 143 S.E. 301. I believe that the legal principles referred to herein establish the fact that the majority opinion, without warrant in law or precedent an......
  • Beckley Nat. Bank v. Boone, 4676.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 13, 1940, confirmed by the court, is protected from any errors which are not jurisdictional. Blankenship v. Mongini, 105 W.Va. 530, 552, 143 S.E. 301; Merchants' Nat. Bank v. Ralphsnyder, 113 W.Va. 480, 487, 169 S.E. We conclude that the decree of the District Court must be reversed, not only o......
  • State ex rel. Valley Distributors, Inc. v. Oakley, 12794
    • United States
    • Supreme Court of West Virginia
    • June 10, 1969 1 syl., 41 S.E. 351; Stewart v. Tennant, 52 W.Va. 559, pt. 8 syl., 44 S.C. 223; Blankenship v. Mongini, 105 W.Va. 530, pt. 2 syl., 143 S.E. 301; Adkins v. Adkins, 142 W.Va. 646, 97 S.E.2d 789 (in which case quite numerous cases are cited and discussed); 21 C.J.S. Courts § 27, pages 38--......
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