Bus kirk v. Ferrell et al.
| Decision Date | 15 March 1902 |
| Citation | 51 W.Va. 198 |
| Court | West Virginia Supreme Court |
| Parties | Bus kirk v. Ferrell et al. |
1. Order Puelicatioim Non-Resident-Appearance.
An unknown party against whom an order of publication has been taken and published may appear within five years after a decree has been entered or within one year after a copy of such decree shall be served upon him, if within the five years limit, and have the same reheard on giving security for costs, (p. 200).
Appeal from Circuit Court, Logan County. Bill by J. B. Buskirk against Jacob Ferrell and others. Decree for plaintiff, and defendants appeal.
Reversed.
Sheppakd & Goodykoontz, for appellants.
J. C. Aldepson and H. K. Shumate, for appellee
Dent, President:
At November rules, 1894, J. B. Buskirk filed a bill in chancery against Jacob Ferrell, E. T. W. Duke, Jr., Henry E. Phillips, trustee, the unknown beneficiaries of said trustee, and others, the object of which was to subject a tract of two thousand five hundred acres of land in Logan County to the payment of the judgment liens against Jacob Ferrell, and to set aside as incidental thereto certain alleged fraudulent conveyances. Afterwards an amended bill was filed bringing in other lands alleged as belonging to said Ferrell and subject to said judgment liens. R. T. W. Duke, Jr., Henry R. Phillips, trustee, appeared and demurred to each of said bills and filed their separate answers denying the fraud charged or that the land, belonged to Ferrell, and was liable to the judgment liens against him. The case was referred to a commissioner who reported that Ferrel was the owner of three tracts of land containing respectively forty-one, fifty and two hundred and fifty acres, which, were subject to a judgment lien in favor of J. B. Buskirk, amounting to three hundred and fifty-four dollars and twenty-nine cents, same in favor of J. A. Sheppard amounting to fifty-three dollars and sixty cents, and same in favor of J. A. Peck amounting to one hundred and seventy-eight dollars and sixty cents.
Defendants Duke, Jr., and Phillips, trustee, excepted to the commissioner's report because he had failed to consider the evidence filed with him in. relation to the two hundred and fifty acre tract of land and failed to return the same with his report. On the 2d day of November, 1897, the court entered a decree overruling the exceptions to the commissioner's report and decreed the sale of said three tracts of land to satisfy the judgments aforesaid. On the 3d day of August, 1898, Luther Koontz and Herman Koontz, partners as Koontz Bros., who were made parties to the bills as unknown beneficiaries and against whom an order of publication was taken, appeared in the suit for the first time and asked leave to file their petition and answer claiming to be the owners of the two hundred and fifty acre tract of land and that the same was improperly decreed for sale as the property of Jacob Ferrell, but the court for some reason unknown refused to allow the petition and answer to be filed. On the 26th day of October, 1893, ...
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