Graham et al v. Graham et al.

• Decision Date: 30 June 1883
• Citation: 21 W.Va. 698
• Court: West Virginia Supreme Court
• Parties: Graham et al v. Graham et al.

21 W.Va. 698

Graham et al

v.Graham et al.

Supreme Court of Appeals of West Virginia.

Submitted January 18, 1883

Decided June 30, 1883.

When questions of fact are submitted to a commissioner in chancery, Ids findings thereon should be sustained unless the court is fully satisfied that the evidence before the commissioner does not warrant them. This ride applies with increased force to an appellate court when called upon to reverse the decree of the court below approving such findings; and when the testimony, on winch the findings are founded, consists chiefly of opinions of witnesses and not facts deposed to, the decree of the eourt below approving such findings will not, except in a plain ease, be reversed by the appellate court, (p. 701.)

Appeal from and supersedeas to two decrees of the circuit court of the county of Monroe, rendered respectively on the 19th day of May, 1879, and on the 16th day of May, 1880, in a cause in said court then pending, wherein John Graham and others were plaintiffs and James Graham and others were defendents, allowed upon the petition of said plaintiffs.

Hon. Homer A. Holt, judge of the eigth judicial circuit, rendered the decrees appealed from.

The facts of the case are stated in the opinion of the Court.

James F. Patton, for appellants.

Samuel Price and John A. Preston for appellees.

Snyder, Judge, announced the opinion of the Court:

This is the third time this cause lias been before this Court upon different appeals. The reports of the two former appeals will be found in 10 W. Va. 355 and 16 Id. 608, and tbe opinions pf this Court therein reported are here referred to for a complete history of this controversy and all the proceedings had in relation thereto prior to the decree of October 16, 1880. The present appeal is from the said decree of October 16, 1880, and a decree of May 19, 1879, which had been rendered before the decision of the Court reported in 16 W. Va. 608.

Prior to said last mentioned decree the cause had been referred to a commissioner to report the rental value of two hundred and eighty-six acres of land, mentioned in the proceedings, and also the cost of supporting Rebecca Graham. The commissioner made and filed his report which was excepted to by both the plaintiffs and defendant, James Graham. The court by said decree of May 19, 1879, overruled the plaintiffs' exceptions to the first and third statements of said report and the defendant's exception as to the " slave fund" and sustained defendant's exception to the second statement, and recommitted the report with instructions to report further as to the said " slave fund." From this decree and a former one, rendered May 17, 1878, the defendant, James Graham, appealed to this Court. The said commissioner's report, exceptions and decrees will be found given, in exienso, on pages 612 to 619 inclusive of the said volume 16 of West Virginia Reports, and it is, therefore, unnecessary to repeat them here as they can be read in connection with this opinion. By reference to pages 628 and 624 of said volume of reports it will be seen that this Court by its decree of May 1, 1880, reversed said decree of May 19, 1879, in so far as it relates to and adjudicates as to the proceeds of the-slave fund" with costs in favor of the appellant, James Graham, against the administrator, Kelly, but no further, holding that the other matters of said decree were not covered by the said appeal and could not properly be considered by the Court. And proceeding then to render such decree as the circuit court should have rendered, this Court "decreed that the cause as to the said II. J. Kelly, administrator of Joseph Graham, deceased, he dismissed, and that the petition of said Kelly, administrator, be also dismissed, but without costs as against said Kelly, administrator, as aforesaid."

In entering the decree of this Court by a clerical error, inadvertently made, instead of the italicized words "without costs" above given, the words with costs were inserted in the decree; and, I presume, the mandate sent from this Court to the said circuit court contained said erroneous words because the said circuit court by its decree ot October 16, 1880, professing to following the said mandate of this Court, dismissed the said petition with costs against said Kelly, administrator as aforesaid. The clerical error of this court, just referred to, was corrected at this term by an order made on the 29th day of June, 1888, which will he certified to said circuit court and that court is now directed to correct its said decree of October 16, 1880, so as to make it conform to the mandate of this Court as now correctly entered.

Omitting the recitals and formal parts, the said decree of the circuit court ot October 16, 1880, is as follows: "And it is further adjudged, ordered and decreed that R. F. Dennis, the special receiver in this cause in this Court, do collect and pay over to the said James Graham the said "slave fund" which was left in his hands by an order heretofore made to loan out upon security, with interest according to law, and report his proceedings to court at the next term thereof.

"And it is further adjudged, ordered and decreed that the plaintiffs recover their costs in this suit expended against.the defendants, except on the petition aforesaid."

The only error complained of in this decree is that the court improperly ordered the payment of the "slave fund" to James Graham without retaining enough ot said fund to pay the costs decreed against him and the balance reported as due from him by the second statement of the commissioner's report the said James Graham, as the appellants allege, being insolvent.

By reference to said decree of May 19, 1879 se...