Keck v. Allenler et al.
| Decision Date | 25 November 1896 |
| Citation | 42 W.Va. 420 |
| Court | West Virginia Supreme Court |
| Parties | Keck v. Allenler et al. |
Restitution Proceedings for Restitution Payment by Commissioner Before Appeal Limitations. By decree of 1888, V. and L. were decreed payment of their liens as second in priority, to be paid out of the proceeds of sale of certain real estate which had been sold under decree, the sale confirmed, and the proceeds directed to be collected and disbursed to the lienors in the order ascertained and fixed by the former decree. Afterwards, in 1889, the order fixing the priorities was changed, remitting V. and L. to the fourth place, and bringing up P. and R. to the second and third places. V. and L. appealed, and the decree of 1889 was reversed, and the decree of 1888, as to order of payment, restored, so far as it related to the payment of the liens of V. and L. But before the appeal was taken, but within the time given by statute to appeal, the commissioner who was directed to disburse the proceeds of sale paid to P. and B. the amounts ofliens decreed them. Held: (1) That V. and L., with proper pleadings, with notice to, or appearance by or for, the parties in interest, may have an order or decree of restitution. (2) Such proceeding could be by rule in the nature of a scire facias; by cross-bill, in form of amended answer, praying affirmative relief; or by motion. (3) That the money was paid to and received by P. and R. in good faith constitutes no defense to the right of restitution in such a case. (4) P. and R. are not protected from paying back such money by any statute of limitations, inasmuch as the chancery cause was pending from the inception to the close of the transaction. (5) P. and R. have no right to compel V. and L. to await the settlement of the accounts of the receiver, to see if there is another fund to the credit of the cause, and, if so, to go against such fund.
R, L. Berkshire, G. C. Sturgiss and W. H. Travers for appellant. R, L. Berkshire and G. C. Sturgiss cited 10 W. Va. 214; 12 W. Va. 298; 5 Leigh, 305; 4 Gratt. 187; 2 Bart. Ch. Prac. 932, 1140, 1144; 5 Gratt. 272, 282; 16 Gratt. 355.
Cox & Baker for appellees, cited, 37 W. Ya. 201; 2 Bart. Ch. Prac. 1142; 16 Gratt. 355; 7 K H. 485; 5 Gratt. 272, 280; 2 Leigh, 261; 2 Arch. Prac. 76, 237; 1 Call, 147; 3 Munf. 229; 13 W. Ya. 231; 33 W. Ya. 152; 32 W. Ya. 152, 335; 25 W. Ya, 692; 20 AY. Ya. 223; 26 \Y. Ya. 583; 2 Munf. 272; 2 Ind. 239; 18 Cal. 275; 23 Ala. 296; 7 W. Ya, 447.
Holt, President:
Upon appeal from a decree pronounced by the Circuit Court of Taylor county on the 26th day of September, 1895, directing restitution of money to the credit of this cause, wrongly paid to appellant, Pickenpaugh, and to Reed.
On the 29th day of February, 1884, Protzman, Reed, appellant Pickenpaugh, and others brought their suit in chancery in the circuit court of Monongalia against Elisha C. Allender and others to enforce mechanic's liens against a certain steam grist mill built by Allender. On the 23d day of June, 1884, an order of reference was entered in the cause to ascertain and report the liens against this property. Master Commissioner Dent executed the order, and filed his report on the 2d day of May, 1887, in which he reported inter alia, a mechanic's lien in favor of Pickenpaugh of four hundred and thirty nine dollars and twenty nine cents. Allender excepted to this debt, as one hundred dollars too much; and to the report, as not made as required by the order of reference. Here this cause stopped. Shortly thereafter Phillip II. Keck, being trustee in a deed of trust on the mill to secure the debts of sundry creditors filed his bill in equity alleging that, for reasons given, he was not able to execute the trust safely without the aid and direction of the court; making Pickenpaugh and others defendants, who accepted service of process. At the Febru- ary term, 1887, an order of reference was entered, by consent, to ascertain liens, etc.; and, by like consent, P. H. Keck was appointed a special receiver, with directions to take charge of the mill, and to use and run the same to the best advantage of the creditors, until the sale, and until the further order of the court. The master commissioner executed the order of reference in this second cause, and returned his report, which was filed on the 18th day of June, 1887, on which dajr the cause was heard on this report and other papers; and the report, appearing to be regular on its face, and no exception thereto being taken, was approved and confirmed. In this report, as confirmed, the claims of Long and Vandervort were reported as liens No. 2 in dignity, and that of Pickenpaugh as No. 4; and, by the same decree, L. V. Keck and George C. Baker were appointed special commissioners to sell the property. Accordingly, they sold the mill, reported the sale at the price of five thousand three hundred and five dollars, and on the 13th day of October, 1887, the same was confirmed, without exception, and the commissioners of sale were continued as commissioners to collect and apply the proceeds to the liens in the order of priority thus fixed and determined.
On the 2d day of March, 1888, Pickenpaugh and defendant Reed filed their petition to rehear and correct these decrees fixing priorities, setting up that the Protzman suit was still pending; that the true place of their lien, in order of priority, was No. 2, ahead of Long and Vandervort, instead of No. 4, to which latter place they were mistakenly assigned by the commissioner. To this petition defendants Long, Vandervort, and Keck, trustees, appeared and answered; and such proceedings were had that by decree entered on the 17th day of October, 1889, the court held that the report of the master commissioner, which had been confirmed without exception, was erroneous on its face, in marshaling the liens, and corrected the decree by placing Pickenpaugh's mechanic's lien as No. 2, remitting the lien of Long and Yandervort to the fourth place; and from this decree Long and Yandervort appealed, and their case was decided in this Court in December, 1892. See Keck v. Allender, 37 W. Ya. 201 (16 S. E. 520).
This decree of 1889, appealed from by Long and Vandervort, was clearly wrong, on the record as it then was in this Court, as appears from the opinion of Judge English, delivering the opinion. Pickenpaugh, the only one here complaining, was a party to the suit; had time and opportunity to except to the master's report, but did not; the report was confirmed; a sale of the mill decreed; the sale was made, reported, and confirmed; the...
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