Fant, Receiver v. Lamon et al.

• Decision Date: 05 December 1885
• Citation: 27 W.Va. 229
• Court: West Virginia Supreme Court
• Parties: Fant, Receiver v. Lamon et al.

27 W.Va. 229

Fant, Receiver

v.Lamon et al.

Supreme Court of Appeals of West Virginia.

Submitted September 4, 1884.

Decided December 5, 1885.

It is not sufficient to reverse a decree, that it is erroneous. Errors must appear to the prejudice of the party complaining thereof.

C. J. Faulkner for appellant.

W. H. H. Flick for appellee.

Johnson, President:

This is an appeal from decrees of the circuit court of Berkeley county, granted by this Court at Charlestown, August 3, 1877. It seems to have been pending in this court some eight years, but in fact it was not matured for hearing until the August term, 1879, at which & certiorari was ordered upon the request ot one of the parties, and the cause continued. The certiorari was made returnable forthwith; but it was never returned. At the August term, 1880, it was continued, and so in 1881, 1882 and 1883. On September 11, 1883 another certiorari was awarded returnable forthwith. On September 4, 1884, notwithstanding the certiorari was not returned, the cause was submitted, and the court has been waiting for the return of the certiorari, because it could not properly decide the cause without it, and it was not returned until the present term of the Court. This explanation is made, because it is unusual for a cause to be pending in this Court so long.

From the record, as it is now before us, it appears that Chas. J. Faulkner many years ago filed a creditors' bill in the circuit court of Berkeley county against John E. Boyd and others, to subject to sale the lands of the said John E. Boyd for the payment of the liens thereon. Two judgment-liens in favor of "The Bank of the Valley" were reported against the lands ot the said Boyd. Hamilton G. Fant had been made receiver and assignee of the said bank and was a party to said suit. The said Fant, receiver, &c, filed his petition in said cause complaining, that the taxes on said land for the years 1870, 1871 and 1872, amounting to $882.35 had been treated by the court not only as a lien on said lands but as a prior lien to said judgments recovered longprior to the assessment of said taxes, and complained in said petition of the decree directing the payment of said taxes as the first lien on the land out of the funds arising from a sale of the land.

The petitioner sought to have the decree corrected, and being denied he appealed from the decree of June 10, 1873, confirming the commissioner's report, fixing the liens and ordering distribution of the funds then in the hands of the court, and also from the decree of May 29, 1874, denying the prayer of his petition. Since the return of the certiorari the record shows, that J. J. Nicholson & Sons, John Johns Jr., W. J. Knott, G. S. Knott and C. H. Knott, executors of Samuel Knott deceased, filed their petition in said cause, in which they alleged, that in the suit of the Merchants National Bank of Baltimore cs. The Bank of The Valley of Virginia, instituted in the circuit court of the United States for the eastern district of Virginia, II. G. Fant was appointed receiver of the assets of said defendant; that among the assets were two judgments obtained, the one in June, 1860, for.$202.76 by the said defendant bank against John E. Boyd with interest and costs, the other for $4,043.50 in favor of said bank against said John E. Boyd and others, to be discharged by the payment of $2021.75 with interest and costs; that said judgments were properly audited in this suit; that by a decree rendered January 17, 1876 in the said circuit court of the United States said judgments were assigned to the petitioners, and that no part thereof had been paid to them'; and the petitioners prayed, that the court would order the amount of...