O'Brien v. Drake

Decision Date14 November 1922
Docket Number4558.
Citation114 S.E. 615,92 W.Va. 286
PartiesO'BRIEN ET AL. v. DRAKE ET AL.
CourtWest Virginia Supreme Court

Submitted October 31, 1922.

Syllabus by the Court.

A defendant will not be permitted to file a cross-bill to obtain relief which is clearly available to him by an answer.

In a suit brought for the purpose of determining the interests of owners in real estate, and having an accounting of the rents issues, and profits thereof, and praying also for general relief, the court has jurisdiction to decree partition of such real estate among the owners thereof when the same are determined and their interests therein fixed under the prayer for general relief, and in such suit, as a prerequisite to such partition, the court may determine what interests each of the several parties have in the real estate, and the character thereof.

Appeal from Circuit Court, Wood County.

Action by Cornelia M. Drake and others against Anna M. O'Brien and others. From a decree dismissing cross-bill, the defendants appeal. Affirmed.

W. H Wolfe and V. B. Archer, both of Parkersburg, for appellants.

William Beard, of Parkersburg, for appellees.

RITZ J.

Several years ago Cornelia M. Drake and others filed a bill in the circuit court of Wood County against Anna M. O'Brien administratrix of the estate of Dennis O'Brien, deceased and others, in which it was asserted that the plaintiffs owned certain interests in a tract of about 1,000 acres of land, and that the defendants also owned certain interests in said tract of land; that the defendants had excluded the plaintiffs from said land, and had not accounted to them for their share of the profits arising therefrom. An accounting was asked for, as well as other specific relief, and there was likewise a prayer for general relief. Decrees were entered in that suit denying some of the plaintiffs' contentions as to the extent of their interest in the land, but determining that they were entitled to an accounting, and fixing the basis upon which the accounting should be made. The O'Briens applied for and obtained an appeal to this court from that decree, and the same, so far as it found that the plaintiffs were entitled to an accounting, and fixing the basis thereof, was reversed. The decrees of the circuit court, however, which denied some of the plaintiffs' contentions as to the extent of their interest in the premises, were affirmed. A full history of this litigation appears in the opinion of Judge Poffenbarger, reported in 83 W.Va. at page 678, 99 S.E. 280.

One of the errors assigned upon that appeal was that the court had not decreed partition of the land among the several owners thereof, but this court held that the failure of the circuit court to so decree partition was not error, inasmuch as it was not specifically asked for, though it might have been properly granted under the prayer for general relief. When the case went back to the circuit court of Wood county, the plaintiffs here, who were defendants in the original suit, filed this cross-bill, the purpose of which was to have the interests of all of the parties determined and fixed, and to have partition of the land among them, if the same was susceptible of partition, and, if not, to have sale thereof. A demurrer was interposed to this cross-bill, for the reason that the matter set up and relied upon as grounds for relief was not properly the subject of a cross-bill, but that all of the relief sought in said cross-bill could be obtained upon the bill in the original suit. The court below was of this opinion, sustained the demurrer to the cross-bill, and dismissed the same, and it is to review this action of the court that this appeal is prosecuted.

The plaintiffs here apparently rely for reversal of the decree upon a construction of the opinion of this court upon the former appeal which would deny the right to partition the land in that suit under the pleadings as they then existed and further insist that, even though the land might be partitioned under the pleadings in that suit, all of the interests of the parties could not be determined therein, wherefore this cross-bill should have been sustained. A reference to the...

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