Appeal from and supersedeas to a decree of the circuit court of Greenbrier county, rendered on the 31st day of October 1877, in a cause in said court then pending, in which Tinsley Brown was plaintiff, and O. C. Martin and others were deiendants, granted on the petition of said Martin.
Haymond, Judge, delivered the opinion of the Court:
This is a cause in equity. It was heretofore before this Court before the defendant, O. C. Martin, was made a party defendant, 7 W. Va. 678. Judge Paull delivered the opinion of the Court; and on pages 679 and 680 he states substantially the evidence then appearing in the record, being the depositions of three witnesses taken by the plaintiff. On pages 680 and 681 Judge Paull in delivering the opinion of the Court, after stating the substance of the evidence, says: "In the absence of all evidence to the contrary, or of any evidence whatever in support of the answers, we think the assignment to the plaintiff is sufficiently established, as also notice of this assignment to the maker thereof, to wit, defendant Noel, by the depositions found in the record. As before stated, there is no evidence on the part of the defendants,. and they claim no affirmative relief. The defendant, Noel, proves his knowledge of the assignment of the bond in 1861; that he had notice thereof at that time, and that said bond was not paid until after this suit was brought. With this statement of the case and the evidence, we think the decree of the circuit court made on the 15th day of December, 1871, dismissing the plaintiff's bill, is erroneous. It seems, however, from a decree entered in this cause, on the 12th day of April, 1872, that there is a judgment on the law side of the circuit court of Greenbrier county, in favor of O. C. Martin, assignee, &c. v. N. W. Noel, and that by consent of parties the money to satisfy the same should be paid by the sheriff to J. W. Davis, to be held subject to the order of the court in this suit; and the plaintiff's bill having been dismissed, it was adjudged and ordered that said judgment be absolute, and said O. C. Martin be permitted to receive the money collected on the same directly to his own use and benefit. We have seen that it was error to dismiss the bill, and it was consequently error to make the foregoing order without first making the said O. C. Martin a party in this cause, he now appearing to be a party directly interested in the subject-matter of this controversy. The decree of the circuit court, made on the 15th day of December, 1871, and the decree of said court made on the 12th day of April, 1872, are reversed and annulled with costs against the appellees, P. B. Harrah and N. W. Noel, and this cause is remanded to the circuit court of Greenbrier county, with leave to the plaintiff to amend his bill, and make additional parties, and for further proceedings," &c.
The decree of this court reversing the said decrees of the court below, and remanding the cause, was made and entered by this court substantially in accordance with the conclusion of the opinion of Judge Paull in relation to reversing and remanding with leave to plaintiff to make new parties.
On the 12th day of October, 1874, the mandate of thiscourt was received by the clerk of the circuit court of Greenbrier county, and entered of record according to law. And afterwards, on the 31st day of October, 1874, the cause was again docketed in said circuit court, and the plaintiff by leave of the court filed his amended bill in the cause making said O. C. Martin a party thereto, in which he charged that since the institution of this suit the said O. C. Martin procured the bond set up and described in the original bill to be assigned to him, and that he took the assignment of said bond mala fide; that he knew before and at the time of the assignment that the bond had been assigned to plaintiff, and of right belonged to him, &c.
Afterwards, on the first Monday in May, 1875, the defendant, O. C. Martin, filed at rules his answer to said amended bill, which is substantially as follows:
" This respondent, for answer to so much of said bills as it is material for him to answer, says that some three or four years since he purchased from his co-defendant, P. B. Harrah, a bond executed by N. W. Noel to G. Knapp for $128.14, dated February 28, 1861, and due on demand; that at the time of said purchase he paid said Harrah lor said bond, and the said Harrah assigned the same to respondent. A copy of said bond is herewith filed as a part of this answer marked Exhibit "X:" that after he purchased said bond as aforesaid, he instituted suit thereon in this couit, recovered a judgment at the October term, 1871, against said Noel, and sometime in the year 1872, subsequent to the month of May in that year he collected said judgment from said Noel as he was directed by an order of the court in this suit. Respondent avers that he purchased said bond from said Harrah for value and in good faith, and that he paid said Harrah for the same at the time of the purchase and. assignment aforesaid; that he had no notice at that time that the plaintiff, Brown, had or pretended to have any claim to said bond; that there was no assignment from the ob- ligee, Knapp, to the plaintiff on said bond; that said Knapp received no part of the consideration for said as-" signment to respondent, but the entire transaction was be-tween respondent and said Harrah and the whole consideration was paid by respondent to said Harrah for said bond. Respondent positively denies that he had any knowledge of any claim of the plaintiff to said bond at the time of said assignment to him. He denies that the defendant, Knapp, owed him at that time, or that said bond was taken in discharge of a debt due to him from said Knapp; he denies that he bought said bond either directly or indirectly from said Knapp"; he denies that at the time of said purchase he knew that plaintiff, Brown, had sued Knapp and Harrah tor said bond or its proceeds. And respondent denies each and all of the allegations and charges.in the plaintiff's bill which are not expressly admitted in this answer," &c.
The Exhibit " X" filed with the answer is as follows:" $128.14. On "demand, I promise to pay G. Knapp the just and full sum of one hundred and twenty-eight dollars and fourteen cents, for value received"of him, as witness my hand and seal this 28th"day of February, 1861.
"(Signed) X. W. Xoel. [Seal.]"
The following are the endorsements appearing thereon:" I, G. Knapp, have assigned the within to P. B. Harrah."
" I assign the within to O. C. Martin without recourse.
" Phares B. Harrah.
"December 1, 1870."
Additional depositions were taken and filed in the cause; and afterwards, on the 13th day of October, 1877, the said circuit court made and entered the following final decree in the cause, to-wit:
"This cause came on further to be heard this 31st day of October, 1877, upon the papers formerly read, upon the mandate and opinion of the Supreme Court of Ap- peals, upon the amended bill of the plaintiff, upon the process thereon regularly executed upon all the defend-. ants upon the answer of Obadiah C. Martin, and general replication thereto; upon the amended bill taken for confessed as to the defendants, except O. C. Martin; upon depositions of witnesses; upon exceptions thereto by the plaintiff; and was argued by counsel. Upon consideration whereof, it is ordered, adjudged and decreed that the bond executed by the defendant, N. W. Noel, on the 28th day of February, 1861, to Gamaliel Knapp for the sum of $128.14, payable on demand, be for the purposes of this suit set up as a lost bond, the right whereof is in the plaintiff, and the principal and interest theieon now amounting to the sum of two hundred and fifty-six dollars and twenty-eight cents ($256.28). And it appearing that a decree was taken against defendant Noel in favor of O. C. Martin for the said debt, and that after the rendition of the decree, and before the same was suspended by appeal or otherwise, the said Noel paid the same to defendant, O. C. Martin, no decree can be rendered against Noel, but it is ordered, adjudged and decreed that the plaintiff, Tinsley Brown, recover against the defendant, Obadiah C. Martin, the sum of two hundred and fifty-six dollars and twenty-eight cents, the amount of said bond, with interest from this day, and his costs of this suit herein by him expended and incurred since the filing of the amended bill making Martin a party, including an attorney's fee of $15.00; and the plaintiff, Tinsley Brown, shall recover against the defendant, Phares B. Harrah, his costs incurred and expended by the plaintiff herein before the filing of the amended bill against O. C. Martin; and the plaintiff may have executions for said sums."
From this decree the said defendant, O. C. Martin, upon his petition and assignment of error obtained an appeal and supersedeas thereto from one of the judges of this...
