Goff v. Mcbee

• Decision Date: 28 November 1899
• Citation: 34 S.E. 745,47 W.Va. 153
• Court: West Virginia Supreme Court
• Parties: GOFF. v. McBEE et al.

34 S.E. 745

47 W.Va. 153

GOFF.

v.McBEE et al.

Supreme Court of Appeals of West Virginia.

Nov. 28, 1899.

REFERENCE.

If the court overrules a demurrer to a bill, and gives the defendant a certain time in which to answer the bill, it cannot properly order a reference of the cause to a commissioner to ascertain the amount of the plaintiff's demand till the time has elapsed which was given the defendant to answer; nor can it then order such reference, if the answer is filed, and denies all the facts on which the plaintiff's claim is based. If such answer be filed, no such reference can properly be made till the plaintiff, by evidence, has proven that he has a demand against the defendant. Neely v. Jones, 16 W. Va. 625.

(Syllabus by the Court.)

Appeal from circuit court, Ritchie county; Romeo H. Freer, Judge.

Bill by E. C. Goff against John A. McBee and others. Decree for plaintiff, and defendant McBee appeals. Reversed.

H. C. Showalter, for appellant.

Robinson & Pierpoint and J. Willis Fidler, for appellee.

ENGLISH, J. E. C. Goff, who sued on behalf of himself and all other lien creditors of John A. McBee, filed his bill in equity in the circuit court of Ritchie county on the first Monday in January, 1897, against John A. McBee and others. On the 27th of February, 1897, the cause was heard upon the bill, the answer of the guardian ad litem, with general replication thereto, and upon the demurrer of McBee to said bill, in which the plaintiff joined, which demurrer was overruled, and leave was given said defendant McBee to file his answer therein within 30 days from the date of the decree. On the same day the cause was referred to a commissioner to ascertain the real estate owned by the defendant; the character of same; what interest or estate he has in the real estate described in Exhibit No. 1 with the bill of complaint; what liens exist against said McBee's real estate, or his interest or estate therein, together with their priority; the rental value of same; and whether such value will in five years pay off and discharge the liens existing against the same. On the 26th of March, 1897, it appears, said defendant lodged among the papers of the cause his answer to plaintiff's bill, which answer was tendered in open court on the 23d of June, 1897, and was ordered to be filed; and on the same day the cause was heard upon thebill, exhibits, and the answers of John A. McBee and of the infant defendants, by their guardian ad litem, and the general replication...