Butler v. Thompson

CourtSupreme Court of West Virginia
Writing for the CourtPOFFENBARGER, J
Citation43 S.E. 174,52 W. Va. 311
PartiesBUTLER. v. THOMPSON et al.
Decision Date20 December 1902

43 S.E. 174
52 W. Va. 311

BUTLER.
v.
THOMPSON et al.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1902.


APPEAL—REVERSAL—PROCEDURE BELOW— SECOND APPEAL.

1. Where the court reverses a decree upon the merits, and remands the cause to the circuit court "for further proceedings therein to be had according to the rules and principles stated in the written opinion" filed in the cause, the findings of fact set forth in the opinion are binding upon the court below, and that court cannot permit new pleadings and further evidence to be filed touching any matter involved in the decision of the appellate court, but must enter a decree in accordance with the opinion.

2. If, in such case, the court below allows the cause to be re-opened by new pleadings and evidence, and pronounces a decree contrary to the decision of the appellate court, the party aggrieved thereby may appeal from the decree and have the same set aside, and, on the second appeal, a mandate will go to the court below to enter a decree in conformity with the decision on the first appeal.

(Syllabus by the Court.)

Appeal from circuit court, Tucker county; John Homer Holt, Judge.

Bill by I. P. Butler against J. F. Thompson and others. Decree for defendants, and plaintiff appeals. Reversed.

Cunningham & Stallings, for appellant.

W. B. Maxwell and C. O. Strieby, for appellees.

POFFENBARGER, J. This Is a second appeal in the chancery cause of Butler v. Thompson, commenced In 1892, and, as decided by this court, reported in 45 W. Va. 660, 31 S. E. 960, 72 Am. St Rep. 838, where a full statement of the matters involved and proceedings had may be seen. The suit was brought for the purpose of setting aside conveyances of real and personal property, as having been made by Thompson with intent to hinder, delay, and defraud his creditors, and especially the plaintiff, I. P. Butler, who, at the time of the institution of said chancery cause, had a judgment against Thompson for $410.60. J. F. Thompson, the debtor, and F. E. Thompson, the alleged purchaser of the property in controversy, filed their answers to the bill, and depositions were taken and filed on their behalf. On the hearing upon the merits, the circuit court dismissed the bill. On appeal, this court reversed the decree of the circuit court dismissing the bill, and remanded the cause "for further proceedings therein to be had, according to the rules and principles stated in the written opinion aforesaid, and, further, according to the rules and principles governing courts of equity." After the cause went back to the circuit court, the defendant, J. F. Thompson, was permitted to file an amended answer and depositions in his behalf, after which another decree was entered by the circuit court again dismissing the bill.

The former decision of this court was clearly an adjudication upon the merits In

[43 S.E. 175]

favor of the plaintiff, and it could not be reheard or In any way altered by the circuit court It was an adjudication upon the facts as well as upon the pleadings, and therefore covered the entire controversy. Instead of accepting it as final and unalterable, as it was bound in law to do, the circuit court permitted the whole matter to be reopened, and additional pleadings and evidence to be filed, and entered a decree in exact conformity with its former decree, which this court had reversed and set aside. The very core of the controversy in this court on the former appeal was the question whether the deed made by Thompson was invalid as having been made to defraud his creditors. It was really the only question decided by this court although the decree entered here did not say so in express terms. It set aside, reversed, and annulled the decree of the circuit court, and remanded the cause, without, in express terms, setting the deed aside. Evidently, the court below has proceeded upon the erroneous view that, as this court did not expressly decree the deed to be fraudulent, set it aside, and charge the plaintiff's debt upon the property, there was no adjudication as to those matters by this court, and they were left open for adjudication by the circuit court As the validity of the deed was the only real question presented, and the decree of the circuit court was reversed, this court must necessarily have reversed the finding of the court below on that question and decided against the validity of the deed. If this court had held the deed good, there could have been no reversal.

The principle governing the case is announced in Koonce v. Doolittle, 48 W. Va. 592, 37 S. E. 644, decided long after the decree here complained of was entered, and holding that questions of fact determined in the opinions filed by the judges of this court, when necessary to the decision of cases, are res adjudicata, and not open for review and readjudication by the circuit court in the...

To continue reading

Request your trial
21 practice notes
  • Mullins v. Green, No. 12000
    • United States
    • Supreme Court of West Virginia
    • July 12, 1960
    ...66 W.Va. 643, 66 S.E. 643; Johnson Foster, 66 W.Va. 453, 66 S.E. 643; Johnson v. Gould, 62 W.Va. 599, 59 S.E. 611; Butler v. Thompson, 52 W.Va. 311, 43 S.E. 174; Wick v. Dawson, 48 W.Va. 469, 37 S.E. 639; Blake v. Ohio River Railroad Company, 47 W.Va. 520, 35 S.E. 953; Seabright v. Seabrigh......
  • William C. Atwater & Co. Inc v. Fall River Pocahontas Collieries Co, Nos. 8590, 8591.
    • United States
    • Supreme Court of West Virginia
    • December 14, 1937
    ...is res judicata. White v. Lazelle, 99 W.Va. 109, 128 S.E. 303; Pennington v. Gillaspie, 66 W.Va. 643, 66 S.E. 1009; Butler v. Thompson, 52 W. Va. 311, 314, 43 S.E. 174; Wick v. Dawson, 48 W.Va. 469, 37 S.E. 639; Seabright v. Seabright, 33 W.Va. 152, 10 S.E. 265; Henry v. Davis, 13 W.Va. 230......
  • Atwater v. Fall River Pocahontas Collieries Co.., ( No. 8590
    • United States
    • Supreme Court of West Virginia
    • December 14, 1937
    ...res judicata. White V. Lazelle, 99 W. Va. 109, 128 S. E. 303; Pennington V. Gillaspie, 66 W. Va. 643, 66 S. E. 1009; Butler V. Thompson, 52 W. Va. 311, 314, 43 S. E. 174; Wick V. Dawson, 48 W. Va. 469, 37 S. E. 639; Seabright V. Seabright, 33 W. Va. 152, 10 S. E. 265; Henry V. Davis, 13 W. ......
  • Findley v. Coal & Coke Ry. Co, (No. 2702.)
    • United States
    • Supreme Court of West Virginia
    • October 12, 1915
    ...and new evidence adduced. Any point actually decided upon the appeal or writ of error is, of course, deemed settled. Butler v. Thompson, 52 W. Va. 311, 43 S. E. 174; Seabright v. Seabright, 33 W. Va. 152, 10 S. E. 265;[87 S.E. 200] Henry v. Davis, 13 W. Va. 230; McCoy v. McCoy, 29 W. Va. 79......
  • Request a trial to view additional results
21 cases
  • Mullins v. Green, No. 12000
    • United States
    • Supreme Court of West Virginia
    • July 12, 1960
    ...66 W.Va. 643, 66 S.E. 643; Johnson Foster, 66 W.Va. 453, 66 S.E. 643; Johnson v. Gould, 62 W.Va. 599, 59 S.E. 611; Butler v. Thompson, 52 W.Va. 311, 43 S.E. 174; Wick v. Dawson, 48 W.Va. 469, 37 S.E. 639; Blake v. Ohio River Railroad Company, 47 W.Va. 520, 35 S.E. 953; Seabright v. Seabrigh......
  • William C. Atwater & Co. Inc v. Fall River Pocahontas Collieries Co, Nos. 8590, 8591.
    • United States
    • Supreme Court of West Virginia
    • December 14, 1937
    ...is res judicata. White v. Lazelle, 99 W.Va. 109, 128 S.E. 303; Pennington v. Gillaspie, 66 W.Va. 643, 66 S.E. 1009; Butler v. Thompson, 52 W. Va. 311, 314, 43 S.E. 174; Wick v. Dawson, 48 W.Va. 469, 37 S.E. 639; Seabright v. Seabright, 33 W.Va. 152, 10 S.E. 265; Henry v. Davis, 13 W.Va. 230......
  • Atwater v. Fall River Pocahontas Collieries Co.., ( No. 8590
    • United States
    • Supreme Court of West Virginia
    • December 14, 1937
    ...res judicata. White V. Lazelle, 99 W. Va. 109, 128 S. E. 303; Pennington V. Gillaspie, 66 W. Va. 643, 66 S. E. 1009; Butler V. Thompson, 52 W. Va. 311, 314, 43 S. E. 174; Wick V. Dawson, 48 W. Va. 469, 37 S. E. 639; Seabright V. Seabright, 33 W. Va. 152, 10 S. E. 265; Henry V. Davis, 13 W. ......
  • Findley v. Coal & Coke Ry. Co, (No. 2702.)
    • United States
    • Supreme Court of West Virginia
    • October 12, 1915
    ...and new evidence adduced. Any point actually decided upon the appeal or writ of error is, of course, deemed settled. Butler v. Thompson, 52 W. Va. 311, 43 S. E. 174; Seabright v. Seabright, 33 W. Va. 152, 10 S. E. 265;[87 S.E. 200] Henry v. Davis, 13 W. Va. 230; McCoy v. McCoy, 29 W. Va. 79......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT