Hunter v. Petitioner

• Decision Date: 01 September 1882
• Citation: 20 W.Va. 343
• Court: West Virginia Supreme Court
• Parties: Hunter, Comm'r, v. Kennedy et al.

20 W.Va. 343

Hunter, Comm'r,

v.Kennedy et al.

Supreme Court of Appeals of West Virginia.

Submitted August 6, 1880

Decided September 1, 1882

(*Snyder, Judge, Absent.;

1. Where a petition was tendered for the rehearing of a cause, which on its face showed, that the grounds, on which a rehearing was sought, were that the petitioner did not have the benefit in the cause of offsets, which he might have filed and did not for reasons in the petition stated, the circuit court properly refused the petition, because the pi an tiff', in order to have the benefit of said offsets, was not compelled to file them in the cause, but might have sued at law to recover the same. (p. 350.)

2. Where such petition was tendered to rehear a cause and also a former cause, on which the latter was claimed to be based, and out of which it was claimed it grew, and neither the bill, exhibits nor decrees in the former cause were exhibited, and no proper

*Cauge submitted before Judge S. took his seat on the bench. description of said bill, exhibits or decrees was made in the petition; the petition was properly refused, (p. 350.)

3. Where there is no appearance to a cause except to make a qualified consent to a decree entered therein, and such decree is entered on bill taken for confessed, and an appeal is taken from the decree, the appeal must be dismissed as improvidently awarded; for no appeal could be taken from the part consented to because of such consent, and no appeal would lie from the residue, because it was entered on a bill taken for confessed, no motion to correct having been made and overruled in the court below, (p. 350.)

Appeal from and supersedeas to three several decrees of the circuit court of the county of Jefferson, rendered respectively on the 16th day of November, 1876, on the 24th day of April, 1877, and on the 24th day of October, 1878, in a cause in said court then pending, wherein Andrew Hunter, special commissioner was plaintiff, and John W. Kennedy and others were defendants, allowed upon the petition of said Kennedy.

Hon. John Blair Hoge, judge of the third judicial circuit, rendered the judgment appealed from.

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

Dandridge ft Pendleton for appellants cited the following authorities: \l W. Va. 122; 27 Gratt. 291; 1 Munf. 279; Dan. Chy. Pr. 1733-1745; Id. 1716 note (2); High Rec. §§ 121, 209 note (1), 227; Id, 201, 202, 208, 209, 231; 9 Gratt. 194; 5 Gratt. 120; Id. 168; Code ch. 132, § 1; Id. ch. 133, § 28; 11 Gratt. 281; 1 Rob. (old) Pr. 456, 457; Mills v. Duryea, 1 Am. Lead. Cas.

Daniel B. Lucas for appellee cited 15 W. Va. 430; 2 Dan. Chy. Pr. 973, 974.

Johnson, President, announced the opinion of the Court:

The following bill was filed in the circuit court of Jefferson county: "Andrew Hunter special commissioner of the circuit court of Jefferson county filed his bill of complaint against John W. Kennedy, Andrew E. Kennedy, John Sel-den and Sarah D. Selden his wife, Mary Cooke, Edward P. Kennedy, S. D. Kennedy and Mary S. his wife, Lizzie G. Selden, Andrew K. Selden and II. C. Selden, defendants. Complainant respectf ally represents that he was duly appointed a special receiver of the circuit court of Jefferson county, in the chancery suit of Jno. I. Ileukle, John W. Kennedy, &c, and as such he obtained a decree in said court on the Chancery side, against the defendant Jno. W. Kennedy; that execution duly issued and was returned, in effect by the sheriff that said Kennedy is an heir of Andrew Kennedy deceased who died in this county, leaving to valuable farms, which are both situated in this county, known as 'Cassilis' and the 'Cave' farm, and that said Jno. W. Kennedy has an undivided interest amounting to one-sixth of said two farms. The complainant therefore prays, that this undivided interest may be subjected to the payment of his said decree, which as will appear by an authentic copy of the same herewith filed as exhibit 'A' amounts to the sum of four hundred and fiftyseven dollars and eighty-nine cents ($457.89) with six per cent, interest thereon from May 3, 1872, till paid and two dollars and twenty cents costs of issuing execution; that to this end sale may be made of such undivided interest, or if the court should think such course necessary that partition in kind may be made, and the portion allotted, to said Jno. W. Kennedy may be subjected in the manner prescribed bylaw to the payment of complainant's debt, Complainant prays further that Jno. W". Kennedy, and the co-heirs named as defendants in the caption, may be made such by proper process, and required to answer, and that all such other, and further relief may be granted, as may be equitable."

Exhibit "A" referred to in the bill is not a part of the record.

At November term, 1876, a decree was entered reciting, that "this cause came on to be heard on the proper process executed or acknowledged by all the defendants, and the bill and exhibits, and the bill taken for confessed as to all the defendants" and referring the cause to a commissioner to take proof of the claim set up in the bill and of the interest of the defendant, Jno. W. W.Kennedy, in the realty inherited from his father, together with the value of such interest, and whether the same could be sold to better advantage by partition before sale, &c. On the 24th of April, 1877, the court entered another decree reciting the incoming of the report of the commissioner, and that it appeared by said report, that there had been by mutual agreement a partition of the "Cave farm," in winch the defendant, Jno. W. Kennedy, had a sufficient interest to satisfy the plaintiff's demand, and referred to a plat of said land so partitioned, and further stated, that a certain portion thereof was to be assigned to said Jno. W. Kennedy. The decree further confirmed the commissioner's report, and appointed two commissioners to sell the said portion to be assigned to said Kennedy to pay the claim-of plaintiff; said sale to take place, "after the expiration of ninety days from the adjournment of this term," &c. The decree concludes as follows: "So much of this decree as directs a sale of John W. Kennedy's land, before his portion has been separately allotted to him, is consented to," signed by counsel for plaintiff, and by counsel for defendant, Kennedy. On the 24th day of October, 1878, the following order was entered: "This case coming on to be heard this 24th day of October, 1878, on the papers formerly read and filed, and on the petition of defendant, Jno. W. Kennedy, for leave to file a bill of review, wras argued by counsel. And on consideration whereof the court doth refuse to permit said bill of review to be filed, and the special commissioners A. E. Kennedy and D. B. Lucas heretofore appointed are directed to proceed to execute the order of sale heretofore entered."

The said petition for a rehearing, or bill of review, whichever it may be called, represents, that at the February rules, 1870, a bill was exhibited against petitioner by John T. Henkle, asking a decree against him for the sum of three hundred and twenty-live dollars, which he alleged was due to him by petitioner, as trustee of Geo. W. Sappington, and which petitioner received by virtue of a sale made by him on the 16th day of August, 1858, of certain property belonging to said Sappington. This bill petitioner answered on November 23, 1870, asking that certain other parties be made defendants thereto.

On the 18th of December, 1871, an amended bill was filed, the chief object of which was to make Andrew Hunter as special commissioner a party defendant. At March rules, 1872, an amendment to this bill was filed correcting certain misstatements in the former bills. At the same rules Andrew Hunter answered said bills, and afterwards, as petitioner is informed, a decree was had against him. Nothing further was done in the cause up to the time petitioner left Jefferson county in 1878. In August, 1878, another bill was exhibited by said Hunter as special receiver of the circuit court of Jefferson county against petitioner and others of the heirs of Andrew Kennedy, probably predicated on the decree in the other cause, which petitioner has not seen, but which...