Handy v. Scott, Baker & Co.
| Decision Date | 14 November 1885 |
| Citation | 26 W.Va. 710 |
| Parties | HANDY et al v. SCOTT, BAKER & CO. et al. |
| Court | West Virginia Supreme Court |
Submitted Jun. 17, 1885.
1. An Appellate court will not reverse a decree at the instance of a party not prejudiced by it. (p. 717.)
2. A paper purporting to be an answer copied into the transcript of the record and certified by the clerk as having been filed in the court below after the cause had been set for hearing but which was not filed by any order of court and is not referred to or recognized in any order or decree entered in the cause, is not a part of the record and will not be considered by the appellate court. (p. 718.)
3. A non-resident party, against whom a decree has been rendered upon order of publication, must proceed in the manner prescribed by the statute for the review of such decree and can not in the first instance appeal therefrom to this Court. (p. 718.)
4. Where the questions purely of fact are referred to a commissioner to be reported upon, the findings of the commissioner, while not as conclusive as the verdict of a jury, will be given great weight and should be sustained unless it plainly appears that they are not warranted by any reasonable view of the evidence. This rule operates with peculiar force in an appellate court, where the findings of the commissioner have been approved and sustained by the decree of the inferior court. (p. 718.)
The facts of the case are sufficiently stated in the opinion of the Court.
D. D Johnson for appellants.
W. S Sands and P. W. Morris for appellees.
Prior to September 13, 1856, Robert Porter had been engaged in the mercantile business carrying on five stores, two in the town of Harrisville and one at Schumla in Ritchie county, one at Hebron in Pleasants county and one Saltille in the State of Indiana. Before said date he became embarrassed and sold all the goods and merchandise in said several stores except a remnant in one of the stores at Harrisville. On the said 13th day of September, 1856, he made an assignment to J. A. Lowther, Noah Rexroad and Addison Rexroad, trustees, of all the notes, accounts and evidences of debt of every kind due him at said several stores prior to the time he had sold the stores; also the remnant of goods at the Harrisville store, some live stock, farming utensils and household and kitchen furniture, & c., in trust, after paying costs of executing the trust, to pay all the debts due from said Porter in the order following: First, all such debts as was then in judgment and execution, and second, all other debts pro rata. A schedule of said debts was made a part of the assignment and among others were the following debts: " Scott, Baker & Co., amount, not known, James Kent, Santee & Co., amount not known, assignees of Reed Bros. & Co., amount not known, J. M. Ashton, $106.37," & c. There was nothing on the face of the assignment to indicate the character of any of the debts, or whether or not any of them were judgments or exceptions.
By two separate deeds of the same date the said Porter conveyed to said trustees a tract of land in Ritchie county and several lots in the town of Harrisville upon the like trust and for the same purposes mentioned in the aforesaid assignment. The assignment and trust-deeds were duly recorded in Ritchie county September 16, 1856.
Soon after said assignment Porter left the State and died insolvent. J. A. Lowther also died intestate.
On December 27, 1867, Henry Handy & Co. instituted their suit in the circuit court of Ritchie county against Scott, Baker & Co. and the other creditors of Porter mentioned in said schedule, the personal representatives of Porter and Lowther deceased, and Noah and Addison Rexroad surviving trustees of Porter. They filed their bill at Jaunary rules, 1868, in which they aver that the notes, accounts and other evidences of debt and all the property mentioned in the aforesaid assignment and deeds were delivered to and passed into the possession of said trustees and that they assumed the execution of said trusts; that the assets of said trust were more than sufficient to pay off all the debts mentioned in said schedule; that in addition thereto there was sufficient to pay off all the plaintiff's judgment for $433.66 recovered by them against Porter, June 19, 1856, in the county court of Ritchie county, and that said trustees realized from said trust assets a sum sufficient to pay off said debts and their judgment; that said trustees have converted said assets to their own use and refuse to pay the plaintiffs' judgment, and they pray that said trustees may be required to discover on oath their transactions relating to said trust and that they may have general relief, & c.
May 21, 1868, an order was made referring the cause to a commissioner to ascertain and report the doings of the trustees and the debts on which payments had been made, & c.
Nothing further was done until January 12, 1872, when an order was entered showing that the plaintiffs moved the court to dismiss the cause, and that Skinner, Ralston & Co., claiming to be creditors of Porter, were admitted as plaintiffs and the cause was ordered to be thereafter proceeded in their names and at their costs.
The next proceeding in the cause was an order made April 23, 1878, showing that the plaintiffs withdrew their motion to dismiss, and leave was given to Skinner, Ralston & Co. to become parties-plaintiffs upon filing a proper petition setting forth their interest in the cause within sixty days.
Upon the special report of the commissioner a rule was awarded by the court, October 28, 1878, against the defendant Noah Rexroad to show cause why he should not be attached for refusing to appear and testify before the commissioner; and on the following day an order was made requiring the said defendant to file a proper answer to the plaintiffs' bill within sixty days and to appear before the commissioner and answer interrogatories in regard to the matters referred to the commissioner.
On April 28, 1879, Noah Rexroad filed his demurrer and answer, and the plaintiffs took time to except or reply thereto. The defendant by his answer, denies that the notes, accounts and evidences of debts mentioned in the assignment of Porter, or any part thereof ever come into possession of himself or his co-trustees; that the trustees when they were informed of the assignment peremptorily refused to have anything to do with the matter, but at the urgent solicitation of Porter and his friends they consented to act as far as to take charge and dispose of the property assigned and conveyed to them other than the notes, account and other evidences of debts; that the said Porter then made an arrangement with John C. French, his former clerk and assistant in his business, to take charge of and collect said evidences of debt and account for and pay over the same according to the terms of the said assignment; that said French did take charge of said evidences of debt and collected all that were collectable and paid the same over to Wm. M. Patton sheriff of Ritchie county in satisfaction of executions held by him against Porter, and that no part of said evidences of debts or the proceeds thereof ever came into the hands of the defendant or his co-trustees. The defendant then proceeds to state the manner in which he executed the trust in regard to the property which came into his hands as trustee, he being the only trustee that acted in the matter. He sold all said property including the real estate and realized therefrom less than $1,200.00 as he verily believes, that he paid all of said money to Wm. M. Patton, sheriff, on account of executions which were in his hands against Porter before and at the time the assignment was made and took his receipts for the same and placed them in a trust in the store of respondent and one Kinney in the town of Harrisville where they remained until the store was broken open by the soldiers along with the " Jones raid" on May 7, 1863, and said trunk was rifled and said receipts and other papers taken away or destroyed, and he has since been unable to find any of them or the memoranda of his trust transactions which were also in said trunk and taken or destroyed at the same time. That after this suit was instituted he paid to the plaintiffs, on May 28, 1870, $233.66 and took from their attorney a receipt in full satisfaction of their said claim with an agreement that this suit should be dismissed by the plaintiffs. He avers that he made this payment not because he was liable for anything as trustee, but as he had lost all his vouchers he was advised to do so rather than incur the trouble and expense of litigation and the risk of being able to obtain justice in the absence of his vouchers.
The plaintiff and defendant Noah Rexroad took many depositions and on October 29, 1879, the commissioner filed his report which on the motion of the plaintiffs was recommitted with leave to the parties to take further proof. On April 26, 1880, the commissioner filed his second report in which he says: After reviewing the testimony and maturely considering the same, he sees no reasons for changing his former...
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