Darnell v. Flynn

Decision Date11 April 1911
Citation71 S.E. 16,69 W.Va. 146
PartiesDARNELL v. FLYNN et al. DARNELL et al. v. MUSICK et al.
CourtWest Virginia Supreme Court

Submitted February 23, 1910.

Syllabus by the Court.

Where a decree declares that a case is heard upon process served, it will be taken for true that there was such process, and that it was served.

The omission of a clerk to enter orders at rules, showing the filing of a bill and setting the cause for hearing, will not reverse decrees as to infants, rendered upon their answer by guardian ad litem.

Where a case is heard as to infants, upon their answer by guardian ad litem, a decree will not be set aside, on the ground that the case was not set for hearing at rules.

The omission of a case from the hearing docket of a chancery court will not reverse decrees in it.

Delivery of a bill in a chancery suit to the clerk in his office is a "filing of the bill," though no indorsement on it of filing is made (citing 3 Words and Phrases, 2764).

A person having no title to land, or right to redeem, cannot maintain a suit to annul a tax deed for it, or to redeem it.

That the sheriff's affidavit to a list of sales of land for taxes is not signed or sworn to will not invalidate a tax deed under a tax sale.

Appeal from Circuit Court, Cabell County.

Consolidated bills by Viola Darnell against Amy Flynn and others, and by Viola Darnell and others against E. E Musick and others. From the joint decree, Musick and others appeal. Reversed, and dismissed.

Marcum & Marcum, Edward C. Lyon, and Sheppard, Goodykoontz & Scherr for appellants.

J. S Miller, for appellees.

BRANNON J.

Francisco died, leaving Amy, his widow, who later married Flynn, and two infant children, Viola, who married Darnell, and Maggie who married McTuree. At his death Francisco owned a tract of 150 acres of land. He was indebted to McCoy, and McCoy brought a chancery suit against Francisco's estate to subject the land to the payment of McCoy's debt, and decrees were rendered therein, subjecting the land to sale to pay the debt, and confirming the sale, and directing a deed to be made to Musick, the purchaser under the judicial sale, and the deed was made by a commissioner under decree to Musick. Over six years after the last decree and deed, Viola Darnell brought a chancery suit against Musick and others, claiming the land under him, having for its object the setting aside of all the decrees in said McCoy case, and the deed made to Musick under them, and this suit resulted in a decree setting aside and declaring void all the decrees in the McCoy case and the deed of the commissioner.

The said land, having been returned delinquent for nonpayment of taxes for the years 1895 and 1896, was sold therefor in December, 1897, and purchased by Varney, who received a tax deed therefor. In 1906 Viola Darnell and Maggie McTuree brought a suit to set aside the tax sale and deed for defect in the proceedings under which the same were made. This case was heard along with the case above mentioned, of Darnell against Amy Flynn, Musick, and others, and a joint decree rendered therein, holding the tax deed valid, but allowing Viola Darnell and Maggie McTuree to redeem the land from the tax sale. E. Musick and others interested in the land appeal from this decree.

We first deal with the case of Darnell against Flynn and Musick brought to annul the decrees in the McCoy case. It is claimed that the decrees therein are utterly void. One reason pointed out for this contention is that there was no summons issued in the McCoy case and therefore no suit. We do not find this to be so. That summons is not found in the papers; but the clerk, speaking from the chancery process book, and from memory, swears that a summons in chancery was issued in the case December 31, 1892. Further, there was found among the papers of the sheriff an official copy of this summons and it was proven by two deputy sheriffs that that summons was served by the deputy sheriff on Amy Flynn and Viola and Maggie Francisco. The copy of the summons is filed in the case and is identified by evidence. Further still on this point of the want of a summons to commence the suit we have a decree which declares that it appeared to the court that process had been duly executed upon all the home defendants, and we have other decrees treating the case as a case and proceeding upon that assumption. Can we say, under these circumstances, that there was no process to commence the suit? Can we say that the judge solemnly proceeds in the case by numerous decrees without looking to whether he had a suit before him?

Another ground of attack upon the decrees is that there was no bill in the case. We have the bill before us in the file of papers, perfectly identified as the genuine original bill. It is not denied that this is the bill; but it is said that no rules were indorsed on it, and that there were no rules entered in the rule book, or any order, showing that the bill was filed, and no order setting the case for hearing, and the case was not properly on the court docket. In answer to this contention we find a decree stating that the process had been duly executed on all the home defendants, and order of publication duly published and posted as to nonresidents, and "the cause having been regularly matured and set for hearing at rules in the clerk's office of this county, and this cause now coming on this day to be heard upon the plaintiff's bill and exhibits therewith filed." Here we have a declaration and adjudication by the court that the bill was present, and that the case had been regularly brought on by proceedings at rules. We have another decree, allowing the bill to be amended. We have still another decree, saying that "this cause came on this day to be heard upon the plaintiff's bill," and the case was heard on both those hearings, and decrees made therein. Do we need authority to show that when a court declares such facts by adjudication they are to be held as true, in the absence of fraud? In Scott v. Luddington, 14 W.Va. 392, it is held that when a decree finds that an order of publication was duly executed it is taken for true in an appellate court. The same principles in Moore v. Holt, 10 Grat. (Va.) 284, and Riggs v. Lockwood, 12 W.Va. 133. Furthermore this bill was presented with the original file of papers and identified as the true bill by the present clerk, as an original paper, and by the clerk in office at the time the bill was filed, and by the attorney who prosecuted the McCoy suit.

It does seem to be asking a stretch of power to ask, under such circumstances, that the court, after six years, be called upon to say that there was no suit at all in court. But it may be that we are too broad in saying that counsel alleges that there was no bill, as he means only to say that there is no bill, because not so indorsed and not entered in the rule book. But the court treated the case as matured at rules, and as a pending suit, and a bill as present, which was so in fact. Now it cannot be that indorsements on the back of a bill, which are mere memoranda, are essential to show it to be a bill. I do not see that they have any legal force, except for identification. The counsel relies with stress upon the fact that no rules were taken up and the case not set for hearing. The court treated it otherwise.

In the first place, that bill was delivered to the clerk, and that is all that is required of the plaintiff. "A paper is said to be filed when it is delivered to the proper officer and by him received, to be kept on file." Bouvier's Law Dictionary, 782; 3 Words & Phrases, 2764; Beebe v. Morrell, 76 Mich. 114, 42 N.W. 1119, 15 Am. St. Rep. 288, and note. The cases of Beverly v. Ellis, 1 Rand. (Va.) 102, and Horsley v. Garth, 2 Grat. (Va.) 472, 44 Am. Dec. 393, are here apt authority. The taking of the rules is purely a ministerial, not a judicial, act. The omission to enter them cannot overturn proceedings. In Shelton v. Welsh, 7 Leigh (Va.) 175, it was...

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