Marling v. Robrecht el at.

• Decision Date: 06 July 1878
• Citation: 13 W.Va. 440
• Court: West Virginia Supreme Court
• Parties: Marling v. Robrecht el at.

13 W.Va. 440

Marling

v.Robrecht el at.

Supreme Court of Appeals of West Virginia.

Decided July 6, 1878.

1. When there are various liens on lands of a judgment debtor,

it is error to decree a sale of the lands without first ascertaining the amount of the liens and their priorities, for the reason that to decree such sale before ascertaining the amount of the several liens, and their respective priorities has a tendency to sacrifice the property, by discouraging the creditors from bidding, as they probably would, if their right to satisfaction of their debts and the order, in which they were to be paid out of the property, had been previously ascertained,

2. When judgment creditors file their petitions in a suit for the

sale of their debtor's land, it is generally error to enter a decree for sale iu their favor, before referring the cause to a com missioner, so that the judgment debtor may have an opportunity of showing any payments made, or set-offs, to which he may be entitled.

3. Generally a practicing attorney may accept service of a writ, or

notice for his client, if it is done in good faith.

4. Such attorney, making an acknowledgment of service on the

back of the summons, will be presumed prima facie at least to have authority for so doing.

5. The effect of the " acceptance " of the service of process is a

waiver of the formal service and return thereof by an author ized officer, and is sufficient ordinarily for the cause to be proceeded with.

6. The 8th section of chapter 139 of the Code of 1868 of West Vir-

ginia confers upon courts of equity jurisdiction and authority, to enforce judgment liens against the lands of the judgment debtor, whether lie has personal property or estate, out of which the judgment might be made by process of execution, or-not. Peck v. Chamber*, 8 W. Va. 210.

Where a suit in equity is pending to enforce judgment liens against a debtor's land, the fact, that persons after the commencement of the suit have acquired judgments against the debtor, generally does not make it necessary for the plaintiff to file an amended bill, making the answer of such subsequent or pendente Hie judgment creditors parties tc the suit; nor is it necessary for them generally to tile their petitions asking to be made parties, if their judgments are obtained before the order of reference made in the cause, or in time after the order of reference for them to prove their judgments before the commissioner..For such subsequent judgment creditor may be allowed to prove his judgment before the commissioner under the general order of reference, and thus make himself at least a quasi party to the cause, and be bound thereby as to his debt.

While with the view of saving a multitude of suits and of costs, pendente lite judgment creditors may be permitted to prove their judgments before the commissioner under the general order of reference, and file petitions in the cause asking to be made parties defendant thereto, still the filing of such petitions by such pendente lite judgment creditors should not be allowed from time to time without limit, so as to unnecessarily delay the plaintiffs cause.

When a court, ordering an account to be taken, under the 4th section of chapter 129 of the Code of 1868 of West Virginia, directs, that notice of the time and place of taking it be published for four successive weeks in a newspaper, the service is complete on the fourth issue of the paper containing it, if it be published in the paper once in each successive week, though the four weeks have not actually elapsed between the dates of the first and last publication.

When the court orders such account, and that notice of the time and place of taking it be published, as prescribed in said fourth section, it is not necessary to give the effect to such publication contemplated by said 4th section of said chapter, that the court should expressly direct in the decree or order, "that such publication shall be equivalent to personal service of such notice on the parties, or any of them."

Whether the court should confirm a sale, made by commismissioners under its decree, must in a great measure depend upon the circumstances of each case. It is difficult to lay down any rule applicable to all eases; nor is it possible tc specify all the grounds, which will justify the court in withholding its approval.

12. The bkl made by the purchaser at the sale must be considered as his offer to the court through its commissioners; and in making it he agrees to be bound thereby, if it is accepted aifd approved by the court; and it is discretionary with the court, whether it will accept the bid and confirm the sale, or set it aside. But this discretion is not an arbitrary one it should be correctly exercised and is liable to review by an appellate court in a proper case.

Appeal from and supersedeas to a deeree of the municipal court of Wheeling, rendered on the 6th day of July, 1877, in a cause in said court then pending, wherein Elijah Marling, Sr., was plaintiff, and John Robrecht and others were defendants, allowed on the petition of said Robrecht.

Hon. G. L. Cranmer, judge of the municipal court of Wheeling, rendered the decree complained of.

The facts of the case arc fully stated in the opinion of the court.

Robert White, for appellant, cited the following authorities:

CodeW.Va. eh. 129, §4; Id. p. 622, §82; 3 W. Va. 143; 4 W. Va. 490; 7 W. Va. 678; 10 W. Va. 59; 3 Gratt. 318; 21 Graft. 906; 8 W. Va. 249; Code W. Va. p. 592, §1; Id. p. 666, §§5, 7; Id. p. 613, §4; 1 Wash. 150; 4 Munf. 366; 10 W. Va. 206; Id. 142-3; 4 W. Va. 600; Code W. Va. ch. 132, §8; 9 W. Va. 492; 11 W. Va. 113; CodeW.Va. ch. 134, §6; 13 Gratt. 235; 4 Graft, 87; 16 Graft. 134; 21 Gratt. 263; Barton's Prac. 172; 9 W. Va. 13; 3 Munf. 29; 4 Rand. 451; 10 W. Va. 78; Story's Eq. PL, §156; 11 W. Va. 514*; 10 W. Va. 203; 7 W. Va. 678; 21 Gratt. 706; Code W. Va. p. 592, §1; 1 Greenl. Ev. §186; 4 Gratt. 87; 10 Gratt. 513; Code p. 613, §4; Id. p. 622, §22; 9 W. Va. 443; 3 Gratt., 330; Acts 1872-3, ch. 153; Code eh. 125, §30; Id. p. 600, §5; 8 Gratt, 496; 20 Gratt. 658; 8 W, Va. 249; 9 W. Va. 13; 8 W. Va. 210; 12 W. Va. 401; Code p. 630, §8; 35 N. Y. 680; 2 Paige 339; 9 Humph. 520; 6 Humph. 146; 2 Patt. &H. 483; 1 Wall. 655; Code Va. (1849) p. 735, §8.; 15 Gratt. 569; 23 Gratt, 409.

W. P. Hubbard and John E. McKennan, for appellee, cited the following authorities: 5 W, Va. 293; 21 Gratt, 430; 9 W. Va. 492.

Caldwell & Caldwell, for appellee, cit3d the following authorities:

10 W. Va. 203; Id. 718; Code p. 592, §1; 7 Kan. 331; 7 Iowa 320; 6 Johns. 295; 1 Einn, 215; 9 Paige oh. 496; Croke (James I.) 695; 12 W. Va. 98; Code Ch. 129, §S7, 8; 6 Gratt, 119; 2 Gratt. 44; 8 W. Va 210; 18 Gratt. 364; Code ch. 175, §5; 3 Gratt. 330; 21 N. Y. 150; 32 Iowa 469; 4 Pet. 349; 8 Gratt. 289; 11 W. Va. 94; 9 W. Va. 155; Id. 492; Code ch. 132, §8; 4 W. Va. 600; 10 W. Va. 142, 143.

Haymond, Judge, delivered the opinion of the Court:

On the 28th day of October, 1876, the plaintiff commenced his suit in equity in the municipal court of Wheeling, against several persons, whose names are stated in the bill. At the November rules, 1876, the plaintiff, filed his bill in the cause, which is as follows: "To the Honorable Gibson L. Cranmer, judge of the Municipal Court of Wheeling. Humbly complaining, showeth unto your Honor, your orator, Elijah Marling, Sr., that on the 1st day of September, 1876, on the lawside of your Honor's said court, he obtained judgment against John Robrecht for the sum of $501.75, and caused execution to issue thereon. Copies of said judgment and execution and the return of tin officer on said execution are herewith exhibited, marked 'Pand '2, ' and are prayed to be taken as a part of the bill. Your orator ~ further showeth unto your Honor, that on the 7th day of June, 1875, George O. Davenport, as special commissioner, conveyed to said John Eobrecht the following property, to-wit: the property known as the Keim house, situated at the corner of Water and Fourteenth streets, in the city ' of Wheeling, and bounded as follows: Beginning at the north-west corner of Water and Fourteenth streets; thence north with AVater street one hundred feet; thence east by a line parallel with Fourteenth street eighty feet to an open space; thence with the west line of said open space south twenty-two feet; thence east by a line parallel with Fourteenth street to an alley; thence south with the west line of said alley seventy-eight feet to Fourteenth street; thence west with the north line of said Fourteenth street to the place of beginning, together with the right to use said alley on the east side of said property in common with other assignees of James and James B. Baker. A copy of the deed by which said conveyance was-made (which was admitted to record in the office of the clerk of Ohio county, West Virginia, on the 7th day. of June, 1876), is herewith exhibited, marked '3, ' and prayed to be taken as part of this bill; and that the said John Robrecht was the owner of the said real estate, at the time your orator obtained his said judgment against him; and that your orator's said judgment is a lien upon said real estate.

"Your orator further showeth, that on the 7th day ot June, 1875, the said John Bobreeht and Catharine, his wife, by deed, which was admitted to record on the 7th day of June, 1875, the day of its date, conveyed the said property to George B. Caldwell, in trust to secure the payment of a certain promissory negotiable note made by said John Bobreeht, dated June 3, 1875, by which he promised to pay twelve months after its date to his own order $12,000.00, and which note was endorsed by him, and is now held and owned by the Bank of the Ohio Valley. A copy of said deed of trust is herewith exhibited marked '4, ' and prayed to be taken as a part of this bill.

"Your orator furthei showeth unto your Honor that on the 14th day of August, 1876, Frederick Schenck recovered judgment against said ...