McCoy's Ex'r v. McCoy's Devisees

• Decision Date: 09 September 1876
• Parties: MCCOY'S EXOR. v. MCCOY'S DEVISEES ET AL.
• Court: West Virginia Supreme Court

9 W.Va. 443

MCCOY'S EXOR. v. MCCOY'S DEVISEES ET AL.

Supreme Court of West Virginia.

September 9, 1876

1. No decree should be rendered affecting the interest of an absent defendant, unless it appear, (if he be not otherwise brought before the court,) that he has been regularly proceeded against by order of publication duly published in a newspaper and posted at the front door of the court house.

2. The objection, for want of due publication against the absent defendant, may be taken by other defendants who may be affected by the decree against him; and if made in the Appellate Court will prove fatal, though the absent defendant was not a party to the appeal.

3. The cause not having been ready for hearing in the court below in the absence of parties who had a right to be heard upon all questions affecting their interest, the order of publication not appearing to have been duly posted, it is in no condition for the Appellate Court to adjudicate any of the principles of the cause, but it should be remanded to the court below that proper parties be made thereto in order to a hearing and decision of the cause according to the rights of the several parties.

Appeal from a decree of the circuit court of Pendleton county rendered at the April term, 1872, of said court, in a cause therein pending, in which William McCoy, executor of General William McCoy, deceased, was plaintiff, and Benjamin McCoy Wellington Holland, Elizabeth Holland, his wife, Wilson G Reger, Daniel I. Reger, Augustus B. Miller, Artemas Miller, Leora Miller and Addison McCoy, administrator of Lucinda Rexroad, deceased, devisees of said General William McCoy, were defendants.

The facts of the case appear in the opinion of this Court.

Hon. John T. Hoke, judge of said circuit court, presided at the hearing below.

No appearance for appellants.

A. C. Snyder for William McCoy's Exor., appellee.

MOORE JUDGE:

Benjamin McCoy, one of the defendants, has taken this appeal under the law as it existed before the act approved December 21, 1872, and therefore has reached this Court upon undertaking and notice, and not upon appeal granted on petition as now required.

Printed with the record is what purports to be a petition for appeal and supersedeas, assigning errors, which has been treated by the appellees in the argument, as the brief of the appellant; and although not strictly within the requisition of the rules, the court, for the purposes of this case, will ex gratia so view it.

The first question presented is, as to the execution of the process. It appears that in addition to the home defendants there were many non-resident and also unknown defendants. The record shows that an order of publication as to the non-resident and unknown defendants, was duly published, but there is nothing to show that it was posted as required by statute: " No decree should be rendered affecting the interest of an absent defendant, unless it appear (if it be not otherwise brought before the court,) that he has been regularly proceeded against by order of publication duly published in a newspaper and posted at the front door of the court house." Craig v. Sebrell, 9 Gratt. 133 citing Hadfield v. Jameson, 2 Munf. 53. In the record before us we find at the February rules, 1867, a decree nisi, at the March rules the " Bill taken for confessed," followed by decrees of ...