Cooper v. Bennett.
| Decision Date | 12 December 1911 |
| Citation | 70 W.Va. 110 |
| Court | West Virginia Supreme Court |
| Parties | Cooper v. Bennett. |
Except by consent of parties, depositions for use as the basis of a final decree cannot be taken before the excution of process or appearance or filing of the bill. (p. 112),
The summons and proceedings at rules cannot be dispensed with by notice of intention to apply to a court of equity for a final decree, (p. 112).
If depositions improperly taken are excepted to, the court should expressly pass upon the exceptions, sustain them, and then allow the depositions to be re-taken, if they disclose the existence of evidence likely to sustain the bill, when put in proper form. In such case, dismissal of the bill as upon the merits is erroneous, fp. 113).
Appeal from Circuit Court, Randolph County. Bill by James Cooper against A. J. Bennett and others. Decree for defendants, and complainant appeals.
Reversed and Remanded.
J. W. Ilarman, for appellant.
W. E. Baker and IT. B. Maxwell, for appellees.
poffenbarger, judge:
Desiring an injunction to vindicate his alleged right to a private "way over the lands of A. J. Bennett, Robert Bazzle and Marcus Bazzle, James Cooper, on the 7th day of February, 1910, gave said parties a written notice, accompanied by a copy of his bill in equity, of his intention to present the bill to the circuit court of Randolph county, on the 17th day of February, 1910, and then and there ask for an injunction upon the same in accordance with the prayer thereof, compelling them to remove certain obstructions to the road and enjoining them from further obstructing the same, and also of his intention to take depositions to sustain the allegations of his bill on the 10th day of February, 1910. Pursuant to this notice he took the depositions of his witnesses on said 10th day of February, and, on the 28th day of that month, filed his bill in court, accompanied by the depositions so taken. The defendants appeared and excepted to the depositions, because taken before the cause had reached a stage authorizing such action. On the tiling of the bill and deposit ions, the defendants appeared and entered their demurrer and filed their joint and separate answers, and the court gave time to mature the cause for hearing. No summons was issued in the cause until March 29, 1910. At April rules, what is called a general and special replication to the answer was filed, and, on the 17th day of August, 1910, the court entered a decree dismissing the bill, from which the plaintiff has appealed.
The decree appealed from says the cause came on that day to be finally heard upon the bill, exhibits, affidavits filed therewith, exceptions to said affidavits, answer of the defendants and replication thereto. The depositions taken and filed were thus described and evidently treated as affidavits, and, instead of expressly passing upon the exceptions thereto, the court dismissed the bill as upon the merits. Tt is said this in effect overruled the demurrer and the exceptions and treated the depositions, though described as affidavits, as having been properly taken, and, as the decree was favorable to the de- fendants, they make no complaint of the overruling of the demurrer and exceptions, if such is the legal result. Insisting upon the sufficiency of the depositions in form and substance and the propriety of overruling the exceptions, the plaintiff seeks reversal of the decree of the court below and a decree here giving him the relief sought.
The exceptions should have been sustained. Technically, there was no suit pending when the depositions were taken. Xo summons was issued, no bill had been filed and there had been no appearance. For the purposes of a preliminary injunction, affidavits may be filed in support of the allegations of the bill and depositions taken as these were might be treated as affidavits. But, offered here as the basis of a final decree, they are insufficient. Eager v. Mellon, 66 W. Ya. 62. For the purposes of a preliminary...
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