Kelty v. High.

• Decision Date: 12 February 1887
• Citation: 29 W.Va. 381
• Court: West Virginia Supreme Court
• Parties: Kelty v. High.

29 W.Va. 381

Kelty

v.High.

Supreme Court of Appeals of West Virginia.

Submitted January 17, 1887.

Decided February 12, 1887.

Decree Modified or Annulled.

In 1881," K " filed his bill against " H and wife " seeking to set aside as fraudulent and void, a voluntary conveyance of certain lands from " H " to his wife and praying that the same may be sold to satisfy his judgment against " BE." On the 9th of December, 1881, the cause was heard upon the bill taken for-confessed against " H and wife," and the court entered a decree annulling said conveyance, and directing a sale of the. lands conveyed to the wife, to pay the judgment against "H." On the 23d of December, 1881, and during the same term, the court on motion of " H and wife," set aside the decree of the 9th of December, 1881, and allowed them to answer the bill. Held:

I. During the term of the court at wiiich a decree is entered, it is completely under the control of the court, and may be modfied or annulled on motion, or at the suggestion of the court without motion.

II. The court did not err in setting aside the decree of the 9th of December, 1881, and in allowing the defendants to answer the bill. (p. 383.)

H. D. Shrewsbury for appellants. W. S. Laidley for appellees. Woods, Judge:

At August rules, 1881, G. L. Kelty and J. B. Kelty filed their bill in the Circuit Court of Kanawha county against William C. High and his wife, Jane C. High, alleging, that on the 15th of February, 1876, said Win. C. High was indebted to them in the sum of $472.10, p ay able on the 1st of March, 1876, and on the sum of $175.00 then due; that on the 24th of February, 1879, they recovered against him in the County Court of said county a judgment upon said claims for the sum of $602.10 with interest from that date until paid and $11.10 costs, an abstract of which judgment was recorded on the judgment-lien-docket of said county on the 3d of April, 1879; that by deed dated and recorded on the 28th of August, 1876, Wesley Mollohan, special commissioner, conveyed to said Wm. C. High eight lots of land in Alden City in said county, which said High by deed dated August 29th, 1876, and recorded on the 12th of September, 1876, conveyed to his wife, Jane C. High.

The plaintiffs charge, that the conveyance from Wm. C. High to his wife was a voluntary conveyance, and is as to this judgment void, because the debts, on which it was based, were incurred before the date of the conveyance to Jane C. High, and pray, that the same may be declared void as to their judgment, and that the lots may be sold to satisfy the same, and for general relief.

The plaintiffs filed as parts of their bill copies of the deeds from Mollohan to Wm. C. High, and from the latter to his wife, whereby it appears, that the consideration in the deed to Wm. C. High was $94.50, and that in the deed from him to his wife $50.00. The value of these eight lots is not otherwise alleged or proved. The defendants failing to appear, the bill was taken for confessed and set for hearing at September rules, 1881, and at a Circuit Court of said county, held on the 9th of December, 1881, the cause was heard upon the bill taken for confessed and exhibits, and on consideration thereof, it was adjudged, ordered and decreed, that the defendant, Wm. C. High, pay to the plaintiffs the sum of $715.55 with interest from that elate, being the amount of their said judgment and the costs of their suit; and that as to the amounts so decreed, the said deed to Jane C. High be vacated, set aside and held for naught; and that, unless said sum be paid within thirty days, a special commissioner appointed for the purpose should sell all of said lots at auction on terms prescribed in the decree. On the 13th of December, 1881, and during the same term of the Circuit Court, the defendants appeared by their counsel and moved the court to set this decree aside and in support of their motion tendered an affidavit of Wm. C. High, which was without objection filed.

The Circuit Court on the 23d of December, 1881, and during the same term thereof vacated, annulled and set aside the decree of the 9th of December, 1881, and allowed the defendants to answer the plaintiffs' bill; to which judgment of the court setting aside the decree and allowing the defendants to answer the bill, the complainants excepted and objected, and on the 21st of November, 1885, obtained this appeal.

It is insisted by the appellants, that the decree, of the 9th of December, 1881, was a final decree, and could be reached only by a petition for rehearing,...