Harrison v. Harman
| Decision Date | 01 June 1915 |
| Court | West Virginia Supreme Court |
| Parties | HARRISON et al. v. HARMAN et al.(two cases). |
(Syllabus by the Court.)
Appeal from Circuit Court, McDowell County.
Suits by Joseph Harrison and others and by Hattie Harrison against George W. Harman and others. From the decree, plaintiffs appeal. Reversed in part, affirmed in part, and remanded.
J. Powell Royall, of Tazewell, Va., M. O. Litz, of Welch, and Sanders & Crockett, of Bluefield, for appellants.
A. W. Reynolds, of Princeton, Jos. S. Clark, of Philadelphia, Pa., Anderson, Strother & Hughes, of Welch, and S. M. B. Coulling and J. W. Chapman, both of Tazewell, Va., for appellees.
In the year 1887 D. G. Sayers, G. W. Harman, and Henry Harrison conveyed to Henry Bowen nine tracts of land in McDowell county, W. Va., known as the Burkhart lands. Bowen took and held the same for himself and others as follows: One-fourth for himself, one-fourth for J. S. Gillespie, one-fourth for A. P. Gillespie, and one-fourth for J. G. Watts. Sayers, Harman, and Harrison had acquired title thereto byvirtue of a proceeding instituted by the commissioner of school lands.
In 18S9 William H. Burkhart and others, heirs at law of George J. Burkhart, deceased, brought a suit in the Circuit Court of the United States for the District of West Virginia against the school commissioner, Henry Bowen, D. G. Sayers, G. W. Harman, and others to annul the school commissioner's proceedings and the deed made by him pursuant thereto. Bowen notified two of his grantors, Sayers and Harman, to defend that suit and protect his title; Harrison, the other grantor, having died before the suit was brought. They did make defense, and notwithstanding the court decreed that the Burkhart heirs had title to the land, annulled the conveyances from the school commissioner to Sayers, Harman, and Harrison and from them to Bowen. An appeal was taken to the United States Circuit Court of Appeals by Sayers and Harman, which resulted in an affirmance of the decree of the lower court.
Henry Bowen then brought an action on behalf of himself and the two Gillespies in the circuit court of Tazewell county, Va., against his two surviving grantors, Sayers and Harman, Harrison being dead, to recover damages for breach of their covenants of title, claiming the right to recover three-fourths of the purchase money which they had paid, together with interest thereon, and the costs and expenses incurred by Bowen in defense of the Burkhart suit. (J. G. Watts, the other joint purchaser with Bowen, had conveyed to one G. W. Lambert his one-fourth interest before the Burkhart suit was brought, and it is in no wise involved and has no bearing on the question to be decided.) Recognizing their liability, Sayers and Harman did not suffer the Bowen suit to proceed to judgment, but compromised it by executing their bond to Henry Bowen, J. S. Gillespie, and A. P. Gillespie, bearing date on the 15th February, 1898, for the sum of $5,187.39. Thereupon Sayers and Harman, treating their bond as a novation and payment of the joint liability of themselves and Henry Harrison, deceased, upon the covenants in their deed of conveyance, brought a suit in equity, to November rules, 1898, in the circuit court of McDowell county against the administrator and heirs at law of said Henry Harrison, deceased, for contribution, claiming the right to recover from his estate a sum equal to one-third of the amount of the bond. By decrees rendered in that cause Harrison's estate was held liable for such sum; and the interest of certain ones of the heirs in two of several tracts of land of which Harrison died seised, situate in McDowell county, were sold to pay the same, and were purchased by said George W. Harman and later conveyed to him by a commissioner acting under order of court.
Henry Harrison resided in Tazewell county, Va., at the time of his death, and died intestate leaving 12 children as his heirs at law, 4 of whom were infants when the last-mentioned suit was brought, the plaintiff and appellant in the present suit, Hattie Harrison, being the youngest, and one of the 0 heirs whose interest had been sold. Six of the heirs had aliened their interests in the McDowell county lands before the institution of the suit and such interests were held not liable to sale.
In July, 1905, two of the heirs, to wit, Joseph Harrison and Belle Sayers (nee Harrison) filed a bill of review, in which they prayed to have the decrees and proceedings in that suit reviewed and annulled, and the deed which the special commissioner had made to Harman canceled, alleging numerous grounds therefor, one of which was that the bill of Harman and Sayers showed no right in them to sue, that it did not show that they had any right to demand payment of any sum of money from Harrison's estate and therefore were not his creditors, and had no right to have the lands subjected to sale. Numerous other errors in the proceedings were averred in the bill. Hattie Harrison, then an infant, was made a party defendant to the bill of review, and on March 7, 1910, after attaining her majority, she filed her answer which, by order of court, was treated as a petition and bill of review. It contained practically the same allegations as the plaintiff's bill, and prayed for the same relief. At August rules, 1910, she also brought an independent suit, making defendants to her bill practically the same parties that were defendants to the bill of review filed by Joseph Harrison and Belle Sayers, and some additional parties against whom no relief is prayed, and prayed for the same relief as in her answer and petition. On February 24, 1911, a number of the defendants filed demurrers to the bill, assigning grounds therefor, and the court took time to consider the question arising thereon. On the 13th of September, 1912, the two causes were heard together, and on motion of the defendants George W. Harman and W. F. Harman, Hattie Harrison was compelled, over her objection, to elect which one of said causes she would prosecute, and she elected to prosecute her last suit. Thereupon counsel for Joseph Harrison and Belle Sayers appeared in open court and admitted that all matters arising in their suit had been settled except those arising on the petition and cross-bill answer of Hattie Harrison; and the court dismissed that suit, together with the cross-bill answer, to which action of the court she objected and excepted. The court then took further time to consider of the demurrers to her original bill, and at a subsequent term, on February 11, 1913, entered a final decree, sustaining the demurrer and dismissing her suit. From those two decrees she has appealed.
A preliminary question is presented bya motion to dismiss the appeal on the ground that it was not perfected in time by the filing of an appeal bond. Section 17, c. 135, serial sec. 4997, Code 1913, requires the appeal to be dismissed whenever it appears that 1 year and 2 months have elapsed since the date of the decree and no bond, as required, has been given. The statute is mandatory, and this court is bound to dismiss for failure to file the bond in the time prescribed. Scott v. Coal & Coke Ry. Co., 70 W. Va. 777, 74 S. E. 992. Resisting the motion, appellant insists that bond was filed with the clerk of the circuit court within the required time, and that it was approved by him, but that it was afterwards lost or misplaced and cannot be found, and tenders in this court the affidavits of the circuit clerk and other witnesses to prove these facts. The truth of these affidavits is not controverted, but counsel for appellees insist that this court is without jurisdiction to consider them; that the question is one of original jurisdiction, and should first have been presented to the lower court. The clerk's office of the circuit court is made the repository for the appeal bond for the purpose of convenience. The bond cannot be filed until after the appeal has been allowed and the amount of the bond fixed by the Court of Appeals, or the judge granting the appeal. Consequently it cannot be regarded as a part of the record of the cause in the court below. Why, then, may this court not hear evidence to determine the disputed fact as to the filing and subsequent loss of the bond? It was held in Hannah v. Bank, 53 W. Va. 82, 44 S. E. 152, that affidavits could be considered by this court to ascertain the value of property levied on, and claimed by a third party, under the provisions of section 152, c. 50, Code 1913 (sec. 2706) for the purpose of determining whether the value was sufficient to give jurisdiction of the appeal, the record of the lower court failing to show the value. Upon like principle evidence to prove loss of appeal bond may be considered. See, also, Dryden v. Swinburn, 15 W. Va. 250. The appeal bond is no part of the record; it is no part of the judicial proceedings in the lower court, and is filed after final decree or judgment therein, and after the matters appealed from have passed beyond the control of the lower court. The fact that the bond is required to be filed with, and approved by, the clerk of the circuit court, and a copy certified by him to the clerk of this court, does not make it any more a proceeding in the circuit court than a proceeding in this court; the law simply makes the circuit clerk the custodian of the bond and the judge, in the first instance, of the sufficiency of the security, and requires him to record it in his office. It would be a very great hardship upon an appellant to dismiss his appeal for want of a bond, after he has done all that the law requires of him by executing a sufficient bond and placing it in the hands of the circuit clerk. He might not thereafter know that his bond had been lost and no copy thereof certified to the clerk of the Court of Appeals until his time of appeal had expired. It would then be too late to supply proof of...
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