Mccoy v. Mccoy

• Citation: 33 W.Va. 60,10 S.E. 19
• Court: Supreme Court of West Virginia
• Decision Date: 14 September 1889
• Parties: McCoy v. McCoy et al.

10 S.E. 19

(33 W.Va. 60)

McCoy

v.McCoy et al.

Supreme Court of Appeals of West Virginia.

Sept. 14, 1889.

Appeal—Practice.

1, When a case is reversed by this court, and remanded to the circuit court, because it does not appear affirmatively that the order of publication in the cause had been posted as required by law, if said order of publication had been published and posted as required by law the defect may be cured, after the case is returned to the circuit court, by an affidavit of the party who posted said order being filed in the cause.

2. To confer jurisdiction on this court in a cause where the interest of the party applying for the appeal is merely pecuniary, it must not only appear that the applicant is prejudiced by the decree of the court below, but also that the amount in controversy exceeds the value of $100, exclusive of costs.

(Syllabus by the Court.)

Appeal from circuit court, Pendleton county.

A. B. Parsons, for appellants. Flick & Westenhaver and Frank Woods, for appellee.

English, J. This cause was before this court in the name of McCoy's Executor v. McCoy's Devisees and others in the year 1876, (9 W. Va. 443,) and at the August term of the court in that year was remanded to the circuit court of Pendleton county, in order that proper parties might be made thereto, in order to have a proper hearing and decision of the cause according to the rights of the several parties. After the mandate had been entered in said circuit court, and it was made apparent to said court that the necessary parties had been properly convened, a decree was rendered in said cause on the 26th day of April, 1880, directing a commissioner to ascertain and report to the court—First, to whom the funds in said suit belonged; second, what the value of any interest is, owned by any of the defendants except William McCoy; third, a settlement of the accounts of Isaac P. Boggs as receiver in said case, etc. On the 23d day of October, 1880, a decree was rendered in said cause confirming the report of Frank Anderson, the commissioner to whom said matter of account was referred, without exception, and ascertaining that the entire amount of money in the hands of the general receiver of the court on the 18th day of September, 1880, to the credit of said suit, was $886.08, and that none of the petitioners for an appeal in this cause have any interest in said funds in the hands of said receiver except Lloyd Wilson and James Wilson, and that their shares are only worth $5.35 5-7 each, and only two of the appellants, viz., Lloyd Wilson and James L. Wilson, appear to be entitled to that amount. When this cause was remanded to the circuit court of Pendleton county, in August, 1876, the decree of April 18, 1872, confirming the reports of commissioners, and the decree of April, 1872, designated in the printed record as the "final decree, " and which purported to construe the will of William McCoy, deceased, among other things, were reversed, so that the decrees of October 23, 1880, and April 26, 1880, entered in the cause after the same was remanded, are the only decrees complained of by petitioners; one of which...