McKinney v. Kirk & Bro.

• Decision Date: 17 July 1876
• Citation: 9 W.Va. 26
• Court: West Virginia Supreme Court
• Parties: McKinney v. Kirk & Bro.

9 W.Va. 26

McKinney

v.Kirk & Bro.

Supreme Court of Appeals of West Virginia.

July 17, 1876.

A suit in chancery is brought to recover $758 in which an attach, ment is issued and levied upon a tract of land owned by the defendants; $718 of this sum is claimed to constitute a vendor's lien upon the land attached. The defendants answer the bill and contest their liability to pay the other $40. Depositions are taken by each party and when the cause is matured for hearing the court renders a decree for the purchase money and decrees the land to be sold. The land was sold and bought by the defendants, the sale confirmed, the price decreed to pay costs and sum decreed plaintiff, deed ordered to be executed and possession to be given by sheriff.

At a subsequent term, the plaintiff moved the court, without notice, to set aside the last order and allow the commissioners report to be amended as to the name of the security in the bond of the purchaser; it was so decreed, the report amended, and the same order of confirmation was re-entered, except that it provided if there was any surplus after paying debt, interest and costs, such surplus should be paid over to the receiver of the court.

An appeal is allowed to this last order; giving its date. Held:

1. That the first decree of confirmation was a final decree.

2. That the order appealed from was void as to the rights of the parties.

3. That this Court has no jurisdiction, because the matter in controversy did not exceed $100, exclusive of costs; the only matter in controversy being the surplus after paying debt, interest and costs, which was much less than $100.

4. That the order appealed from was void, and the same, in substance, as the final decrees, except as to the surplus, and the plaintiffs in error could not complain, as it worked no prejudice to them. In this case the appeal should be dismissed with costs to the appellee as the party substantially prevailing in this Court.

Appeal from, and. supersedeas to, a decree of the cir-cult court of Ritchie county, rendered on the twenty-first day of October, 1875, in a suit therein pending, wherein James McKinney, Jr., was complainant and William Kirk and David Kirk, partners in business as Kirk & Bro., respondents. The appeal was granted on the petition of Kirk & Bro.

The opinion of the Court contains a sufficient statement of the case.

The Hon. James M. Jackson, judge of said circuit court, presided at the hearing below.

Robert S. Blair, for the appellants.

Scott & Cole, for the appellee.

Edmistox, Judge:

This is an appeal from a decree rendered on the twenty-first day of October, 1875, by the circuit court of Ritchie county. It appears from the transcript of the record, that a suit was instituted by the appellee against the appellants on the twenty-first day of "February, 1873, to obtain a decree for the amount due the plaintiff, evidenced by three notes. One note calls for the payment of $100, the second $618, and the other for $40. The first bearing interest from the first of December, 1871, the second the twenty-fourth June, 1872, the other from the twenty-eighth January 1873. It is alleged that the first two notes were given for the purchase of a tract of land and constituted a lien thereon. At the time of the institution of the suit an attachment was sued out for the amount of all the notes, and levied upon the said tract of land. The case being matured, by service of process on one of the defendants, and order of publication as to the other defendant, and their joint answer subsequently filed, was heard, and a decree rendered for the sum of $718, the amount of the two notes given for purchase money, and no notice taken of the other note or of the attachment, except to state that its validity was contested by the defendants. This sura was declared to be a lien on the "land and it was decreed to be sold on the usual terms; it was sold and bought by one of the defendants for the sum of $875. The sale was confirmed, the money ordered to be collected and disbursed by the payment of the cost of sale and suit and the amount due the plaintiff, and the residue, if any, to the defendants; at the same time the commissioner was ordered to execute a deed to the purchaser and the sheriff was also ordered to deliver possession of the land to the purchaser. From this it appears to me that there was a final decree in the case; the whole subject matter had been disposed of and nothing remained for the court to do. Vanmeter's Exors. v. Vanmeters, 3 Graft. 142; Grim v. Davisson, 6 W. Va. 465. Unless it can be claimed that as the court failed to pass, in express terms, upon that part of the debt claimed by the $40 note, and by the provision in the interlocutory order, "reserving all other questions in the record for the further action of the court," makes it retain its interlocutory character. The plaintiff sued out his attachment for the aggregate sum of all three notes, and asks in his bill a decree for that sum. The right to have this relief was contested by answer and evidence taken? and when the cause is heard the court does not give a decree for all demanded, but only for part, and passes the residue over in silence. If there is to be regarded any analogy between a trial at law and equity we would see that such a finding by a jury, or court at law would be a rejection of the amount not allowed and I do not see why it should not be equally so in equity. The court decreeing this sum proceeds to sell all the attached effects and disposes of them, as I have stated above. Now would it be right to allow the plaintiff to go back and have a hearing upon this item passed over? Take another decree or order of sale or execution, thus subjecting the party in one suit to two trials, and really to two setts of costs? I think not.

In the case of Cocke's Admr. v. Gilpin, 1 Rob. 20, the subject of final and interlocutory decrees is treated of at great length and with the usual ability and clearness of Judge Baldwin. He reviews many cases and to relieve the question as far as he could from the seeming difficulty and complication...