Gauley Coal Land Ass'n v. Petitioner

• Decision Date: 04 December 1906
• Citation: 61 W.Va. 19
• Court: West Virginia Supreme Court
• Parties: Gauley Coal Land Association v. Spies et al.

61 W.Va. 19

Gauley Coal Land Association

v.Spies et al.

Supreme Court of Appeals of West Virginia.

Submitted September 12, 1906.

Decided December 4, 1906.

1. Equity Pleading Answer Permission to File.

Where an answer which presents no defense is offered, the court should, upon objection, refuse to permit it to be filed, (p. 20.)

2. P roc kss Service.

Quaere: Where a process is served by an individual, is it necessary for the affidavit or return showing the time and manner of service to also show the place of such service? (p. 21.)

3. Appeal Amendment of Proceedings in Court Below.

Pending an appeal and supersedeas in this Court, the return of service of process commencing a suit may be amended in the lower court, upon proper application and notice to the opposite party; and if the amendment is allowed, such fact may be shown to this Court by supplemental record, (p. 23.)

4. Same Effect of Amendment.

When an amendment is thus made, and so shown, if it appears that it was properly made, and that the defective service is thereby cured, it will relate back to the time of service, and will obviate the error in that regard, (p. 23.)

5. Vendor and Purchaser Vendor's Lien Enforcement Sale.

Section la, chapter 132, Code 1899, section 3993, Anno. Code, 1906, which provides that a decree for the sale of real estate of the value of five hundred dollars or more shall be advertised by the commissioner or person appointed to make the sale in a newspaper published in the county where such real estate is situated, is mandatory, and where a suit is brought to enforce a vendor's lien retained in a deed conveying the timber upon various tracts of land, some of which are situated in one county and some in another, the decree should provide for the publication of the notice of sale in both counties, (p. 23.)

Appeal from Circuit Court, Greenbrier County.

Bill by the Gauley Coal Land Association against Henry Spies and others. Decree for plaintiff, and defendants appeal.

Moil! tied and A firmed.

Henry Gilmek and H. L. Van Sickler, for appellants. Williams & Dick, for appellee.

Sanders, Judge:

This is a suit in chancery, brought in the circuit court of Greenbrier county, by the Gauley Coal Land Association against Henry Spies and R, H. Ely, having for its object the enforcement of a vendor's lien retained by the plaintiff in a deed executed by it to the defendants, conveying to them all of the timber above a certain size standing upon various tracts of land in Greenbrier and Nicholas counties. From a decree in favor of the plaintiff, the defendants have appealed.

The defendants demurred to the bill, assigning as a ground therefor that the plaintiff hied copies of the contract, notes and schedule of tracts of land, as exhibits with the bill, when it had the original notes, and a duplicate original of the contract and schedule of tracts.

A party is not required to file with his bill the original papers which form the basis of his claim, but he may aver the contents of these papers, or file copies of them with his bill as exhibits, at his pleasure. It is not ground for demurrer that he does not file the originals. The bill is clearly good, and the demurrer was properly overruled.

It is also claimed that the court erred in sustaining the exceptions of the plaintiff to the answer of Henry Spies. There were no exceptions to the answer, properly speaking. Exceptions are only taken to an answer after it is hied. This answer was not hied, but upon objection, the court rejected it. A court should, when an answer presents no defense to a bill, refuse to permit it to be filed when objected to. This answer presents no defense whatever. It does not deny a single allegation of the bill, neither does it allege affirmative matter of any kind. It is said, however, that it alleges that the plaintiff has computed interest on interest, and that therefore it constitutes a plea of usury, and is sufficient under sections 6 and 7, chapter 96, Code 1899, sections 3131 and 3132, Anno. Code 1906. The answer charges that there is no statement contained in the bill showing the amount due, and then says that the plaintiff has, in ascertaining the amount due, calculated and charged interest on interest, thus making the transaction usurious. The bill does not show any calculation as having been made by the plaintiff. It simply alleges the sale of the timber to the defendants, at a stipulated price, and that the defendants executed their notes for the deferred payments, and that all except two of them are due. Copies of the notes are exhibited with the bill, and no calculation is made. It is purely a question of calculation for the court. The plaintiff does not claim usury. It only claims the amount of the notes, with interest. The answer certainly presented no issue, and the court properly refused to allow it to be filed.

The next ground for reversal is, that the court overruled the motion of the defendant, Ely, to quash the return of service as to him. He appeared specially and moved to quash the return, on the ground that it failed to show in what county service was had. The court overruled the motion, and the defendant Ely withdrew from the case. The process was served by an individual, and an affidavit was made as to the manner and time of service, but it failed to show where it was served. A personal decree was rendered against the defendants; hence the necessity of personal service. Where was this process served? Was it within the jurisdiction of the court? It does not show this expressly, and as it does not, where do we get the information? The process was directed to the sheriff of Monroe county, and this being so, is there a presumption that it was served in this state? If not, the service would not be good. There would necessarily have to be such presumption to sustain it. Where a process is served by an officer, whose duty is it to do so, it is not necessary for the return to show that it was served in his bailiwick. An officer is presumed to have discharged his duty and not to have exceeded his powers. We cannot presume that when a process is delivered to an officer to be served that he will do an unlawful act by serving it outside of his county, but it is presumed that he did not do so. We will not decide this question, as the amendment of the return has made the decision of it unnecessary. Since the motion to quash, in the circuit court, and since the allowance of the appeal and supersedeas, the plaintiff, after having given notice to the defendant, Ely, applied to the circuit court for permission to amend the return, to which amendment the defendant Ely objected, but the court overruled the objection, and permitted the return to be amended so as to show that the process was served in Monroe county. This appears from the supplemental record filed herein, it being the record made upon the motion to amend. The amendment being allowed, it cures the return, and relates back to the time of service. McClure-Mabie Lumber Co. v..Brooks, 46 W. Va. 732. The question then arises, what effect is to be given to the amendment, as regards the decision of this case? Should we disregard the amendment, and adjudicate upon the record as it stood at the time the appeal was allowed, or should we consider the record as it now stands? Courts now allow amendments with great liberality, where the ends of justice will be promoted and no injustice done. What injustice was done, or can be done, by allowing this amendment to be made?

The answer must be, that instead of doing an injustice, it is the establishment of truth, and thereby prevents the miscarriage of justice. Why should a judgment or decree be avoided when the process has been properly served, and when this fact can be made known by allowing an amendment? The amendment having been properly made, and it being brought to the attention of this Court by the supplemental record, we should consider the record as it appears, although partly made since the allowance of the appeal, and when we do so, we find that the process was properly served, and that the court had jurisdiction of the person of the defendant, Ely. If we should reverse, the circuit court, when the case goes back, could allow an amendment to be made, and when so made, it would relate back to the time of service. Then if this is so, why should this dilitory measure be indulged in, when there is certainly no good reason for it. "A return of service may be amended after appeal or pending writ of...