Lovern v. Damron

• Decision Date: 18 December 1923
• Docket Number: (No. 4757.)
• Citation: 120 S.E. 757
• Court: West Virginia Supreme Court
• Parties: LOVERN . v. DAMRON et al.

120 S.E. 757

LOVERN .

v.DAMRON et al.

(No. 4757.)

Supreme Court of Appeals of West Virginia.

Dec. 18, 1923.

(Syllabus by the Court.)

Appeal from Circuit Court, Mingo County.

Action by Elizabeth Clay, revived in the name of S. J. Lovern, administrator, against William Damron and others. Decree for defendants, and plaintiff appeals. Reversed and remanded.

Stafford & Rhodes, of Williamson, and Thomas West, of Huntington, for appellant.

James Damron, of Williamson, for appellees.

MILLER, P. This suit was brought returnable to April rules, 1915, by Elizabeth Clay against William Damron and others. By an order entered October 23, 1915, the cause was revived in the name of S. J. Lovern, administrator of the personal estate of the said Elizabeth Clay, shortly after the death of the original plaintiff.

The record shows that plaintiff's bill was filed at April rules, 1915, and at May rules was taken for confessed, and the cause set for hearing. In her bill plaintiff alleged that she had been indorser on a note made by defendant Damron; that defendant failed and refused to pay said note; that suit wasbrought by the payee thereof, and Judgment rendered against her and defendant; that defendant refused to pay off and satisfy an execution on said judgment; and that she was compelled to pay the same. By the prayer of her will she asked to be subrogated to the rights and remedies of the payee of said note, and that she be granted a decree against Damron. therefor, and that the lien of said judgment upon certain real estate mentioned in the bill be enforced by a sale thereof for her benefit.

Because of the disqualification of the circuit judge to hear and determine the cause nothing was done therein until January 20, 1916, when defendant Damron filed his answer to the original bill. Depositions were taken by plaintiff on May 31, 1918, and filed in the cause. On April 25, 1921, the disqualified judge having retired, his successor entered a decree granting plaintiff the relief prayed for and appointing a commissioner to rent or make sale of the property mentioned in the bill.

On December 30, 1921, defendant William Damron filed his bill of review, alleging certain irregularities in the proceedings in the cause, and praying to have reviewed, reversed and set aside the decree entered on April 25, 1921. The order filing said bill of review recites that plaintiff in the original bill by his counsel demurred to the bill of review and moved to strike the same, and that upon the overruling of the demurrer and motion to strike, counsel stated in open court that they did not desire to answer said bill of review, and that upon motion of said Damron for submission of the bill of review on the demurrer and motion to strike, the cause was submitted to the court for final decision, counsel for plaintiff Lovern assenting thereto; and the commissioner was enjoined from further proceedings.

An order entered in the cause on January 7, 1922, recites that on that day counsel for plaintiff Lovern appeared specially and moved to set aside the order of December 30, 1921, upon the ground that the facts stated therein were not true, and that they did not appear and interpose a demurrer to the bill of review, and did not consent to a submission of the cause, and that they did desire to answer said bill; which motion not being resisted by counsel for defendant Damron, it was ordered and decreed that the decree of December 30, 1921, be set aside, vacated and held for naught.

On January 24, 1922, defendant Damron filed his petition, praying that the decree of April 25, 1921, be vacated and set aside, upon the ground, among other things, that at the time said decree was entered he was residing in Cincinnati, and had been informed and believed that plaintiff had abandoned the suit; that the cause was not upon the trial docket for that term of court and had not been upon the docket since the September term, 1919, and that he was not called upon and was not then present; and that therefore no decree could be entered against him in the cause. On the same day the court entered an order vacating and setting aside the decree of April 25, 1921, reciting therein that it appeared from the petition, affidavits and court records that the cause was not set for hearing at the time the said decree was entered, and that it was entered with the belief that the cause was properly on the trial docket and that there would be no...