Chapman v. The Pittsburgh

• Decision Date: 30 May 1881
• Citation: 18 W.Va. 184
• Court: West Virginia Supreme Court
• Parties: Chapman v. The Pittsburgh & Steubenville RailroadCompany et. al.

18 W.Va. 184

Chapman

v. The Pittsburgh & Steubenville RailroadCompany et. al.

Supreme Court of Appeals of West Virginia.

Decided May 30, 1881.

1. The general rule is, that when proceedings are had to sell the fee in land, it is not necessary to make the les&ee of the land a party to the suit.

2. Where it does not appear in the pleadings or otherwise in the case, that a person has an interest in the subject-matter of the suit, he is not a necessary party to the suit.

3. Where a firm takes a contract from a corporation to construct an improvement, and said firm sub-contracts to another firm, which does a large amount of work, and the first firm fails and cannot pay the subcontractors, and to induce the sub-contractors to go on with the work the corporation assumes to pay the old debt due the sub-contractors, and releases the contractors from all obligations to pay such old debt, the first contracting firm is not a necessary party.

4. The general rule is, that when it is necessary to adjudicate the rights of an assignee, the assignor must be made a party to the suit; but to this rule there is the exception, that where the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment is neither doubted nor denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the assignor a party.

5. If a person is not named in the bill, and no allegation with reference to him appears therein, the naming of him in the summons does not make him a party to the suit, although he may have been served with process.

6. Although a person he named in the prayer of the bill and also in the summons and served with process, yet if there is no allegation in the bill with reference to him, he is not a party to the suit, because there is nothing in the bill, to which he could answer, and his rights, if he has any, are not to be adjudicated without giving him an opportunity to defend his interest.

7. The Court will not take judicial notice, that a railroad company under its charter condemned or acquired title to any particular land, or strip of land.

8. Where a strip of land with a railroad track thereon in a proceeding against a foreign corporation and with no charter privilege from this State, in which the road is situated, is attached at the suit of a creditor, and it does not appear in the record, that any railroad chartered in this State has any interest therein, the Court will regard the strip of land so attached as ordinary real estate; but no decree with reference thereto or sale of the land thereunder can affect the rights of any railroad chartered in this State or any interest of such railroad in such land, of whatever character that interest may be, such road not being a party to the suit,

9. Generally exceptions to the reports of master-commissioners partake of the nature of special demurrers; and if the report is erroneous, the party complaining of the report or excepting thereto must point out the errors in his exceptions with reasonable certainty, so as to direct the mind of the Court to them. When he does so, the parts not excepted to are admitted to be correct, not only as regards the principles, but also as relates to the evidence on which they are founded.

10. If a railroad company let a contract to construct a road to a firm, and that firm sub-lets the contract to another firm, which does a large amount of work, and the first firm fails and does not pay the sub-contractors, and the railroad company to induce the sub-contractors to go on with the work agrees to pay to them the debt of the contractors, such agreement is founded on a valid consideration and is binding.

11. Where three suits are consolidated, and there are attachments in each, and the defendant, a non-resident corporation, appears in the suits, and a personal decree is rendered against it, but in one of the suits the trustees holding the legal title are not before the Court, and the Court as to that suit declines to make an order of sale as to the attached property but remands it to rules to bring in the trustees holding the legal title, and in this state of the case an appeal is taken from the decree in the consolidated suits, this Court will not consider any alleged errors in such attachment, because its validity had not been passed upon by the circuit court.

12. Where the bill makes reference to important exhibits and bases allegations thereon, and the defendant answers and does not deny the existence of the exhibits nor contest their validity, and they are not produced, the defendant can make no objection in the appellate court to their non-production.

13. Where an attachment is sued out against a non-resident corporation, which has the equitable title to real estate attached in the cause, a personal decree may be rendered against such non-resident corporation, which appears in the cause; but the attached property will not be sold in the absence of the trustees, who hold the legal title; they must either be served with process, or, if non-residents, an order of publication must issue against them and be duly published.

Appeal from and supersedeas to a decree of the circuit court of the county of Brooke rendered on the 22d day of February, 1877, in three consolidated causes in said court then pending, in which G. M. Chapman was plaintiff and the Pittsburgh & Steubenville Railroad Company and others were defendants, allowed upon the petition of said company.

Hon, Thayer Melvin, judge of the first judicial circuit, rendered the decree appealed from.

Johnson, Judge, furnishes the following statement of the case:

There are three suits consolidated in this record. On the 4th day of January, 1867, the plaintiff filed his affidavit for an attachment in equity, claiming a large amount of indebtedness due him as assignee of J. R. Cook & Co., and J. R. Cook. The same day a summons in chancery issued from the clerk of the circuit court of Brooke county, on which summons an order of attachment was by the clerk endorsed, and on the same day the sheriff of the county endorsed his levy. To this suit, the Pittsburgh & Steubenville Railroad Company, and Thomas Seabrooke, trustee, were made defendants; and an affidavit being filed that said defendants were both non-residents, an order of publication was issued, which was, as the decree shows, executed.

On the 12th day of January, 1867, the said Chapman filed another affidavit claiming a further large indebtedness to him as the assignee of said J. R. Cook & Co. and J. R. Cook; and James Hervey also filed on the same day an affidavit for said Chapman covering the same indebtedness. The affidavit of the plaintiff was made on the 7th day of January, 1867, in Illinois. On the said 12th day of January, 1867, a summons issued in chancery in this suit No. 2, in Brooke county, and an order of attachment was by the clerk endorsed thereon; and on the same day a levy was by the sheriff made on the same property, as was mentioned in the levy in the first suit, to wit, on all "the legal and equitable interest of the Pittsburgh & Steubenville Railroad Company in the real estate of said company and in the right of Thomas Seabrooke, trustee, in the said county of Brooke, and particularly on a piece or tract of land about one hundred feet wide, extending from or near to the Ohio river, near the mouth of Harmon's creek, along the ravine of said creek, or near the same, to or near the Pennsylvania state line; also upon the railroad track and appurtenances on said land."

In May, 1867, the bill in this case was filed, making the said railroad company, Thomas Seabrooke, trustee, Isaac Jones and Robert Woods defendants; and an affidavit being filed of the non-residence of said corporation and also of the other defendants, an order of publication issued, which according to the decree was "duly executed."

Suit No. 3 was instituted in Hancock county, and the affidavit for an attachment made by the said plaintiff, claiming as assignee, &c, of the same parties and in his own right and as assignee of James Andrews, a further large indebtedness, was made and filed by said Chapman on the 11th day of June, 1867. A summons in chancery issued on the same day, and on it an order of attachment was by the clerk of the circuit court of Hancock county endorsed, and was levied by the sheriff on the same day "on all the lands, railroad track, railroad bed and premises on said land belonging to the Pittsburgh & Steubenville Railroad Company in the county of Hancock," &c.

The bill in this cause was filed at September rules, 1867, and made defendants thereto the said railroad company, Daniel Tyler and Ambrose W. Thompson, trustees, Isaac Jones, Robert Woods, The Holliday's Cove Railroad Company and Thomas McElrath, trustee; and The Western Transportation Company was also named in the process, but no allegation against it appeared in the bill. Affidavit being filed, that all the above parties except Daniel Tyler and Ambrose W. Thompson, trustees, who were omitted from the affidavit, were non-residents of the State, an order of publication issued, which, the decree recites, was "duly executed." The court refused as to this case to order a sale of the attached property, until the said trustees were before the court by publication or otherwise. The defendant, The Pittsburgh and Steubenville Railroad Company, answered in both the Brooke county cases, but not in the Hancock county case. By consent of plaintiff and The Pittsburgh and Steubenville Railroad Company by counsel on the 8th day of December, 1869, the Hancock county suit was removed to the circuit court of Brooke county. On the 16th day of December, 1869, by consent of the same parties the three suits were consolidated. On the same day on motion of the plaintiff the causes were referred to commissioner A. J. Clark, "to audit, state and report an account showing...