Syllabus
by the Court.
The
transcript of a justice's docket, noting the return of a
summons by an officer, is not so conclusive as to render a
judgment void for the reason that such return as set out in
such transcript is defective, as the justice is not required
to make other than a brief note of such return in his docket.
Appeal
from circuit court, Hancock county; Joseph R. Paull and H. C
Hervey, Judges.
Bill by
John Moren against the American Fire-Clay Company and others.
John Francy and Carrie S. Hilsinger filed petitions to be
made parties plaintiff. There was an order sustaining
defendant John H. Atkinson's demurrer to the bill, and
from a decree of dismissal plaintiffs John Francy and Carrie
S. Hilsinger appeal. Reversed.
DENT
J.
John
Moren, plaintiff, filed a bill in chancery in the circuit
court of Hancock county against the American Fire-Clay
Company and others, setting up a judgment lien against said
company, attacking certain conveyances and transfers of
property to John H. Atkinson, defendant, as fraudulent and
void, making various other lien creditors parties, and asking
that the property of said company, with the liens and
priorities thereon, be ascertained, and that such property be
sold to satisfy such liens. Defendant Atkinson appeared, and
demurred to the bill, and on the 3d day of April, 1897, the
circuit court entered an order sustaining such demurrer, as
follows: "This cause came on this 3d day of April, 1897
upon the demurrer in writing of John H. Atkinson, one of the
defendants, to the amended bill filed by the plaintiffs
against him and others, which demurrer was set down for
argument, and argued by counsel; and the court being of
opinion that the judgment in favor of the plaintiff against
the American Fire-Clay Company, obtained on the 20th day of
June, 1895, before E. A. Hart, a justice of 'Hancock'
county, for the sum of three hundred dollars and interest and
cost, is void upon its face, there being no sufficient
service of the summons in the cause, as appears by the
transcript of said judgment exhibited with the bill, and
that, in consequence, the plaintiff has not shown himself
entitled to any lien upon the property mentioned in the bill
or to any remedy against it or against any of the parties
defendant, it is adjudged, ordered, and decreed that the said
demurrer be, and the same is hereby, sustained; whereupon the
complainant asked leave to amend by alleging in his said bill
that in the action before E. A. Hart, justice, in which the
said judgment for $300 was rendered in favor of the
complainant, John Moren, the defendant the American Fire-Clay
Company appeared on the 20th day of June, 1895, before the
said justice, to answer the said action, by Thomas Stewart,
its secretary, and that the said Thomas Stewart was then the
secretary of the said defendant the American
Fire-Clay Company,
and was duly authorized to appear for it to answer the said
action; and the court, being of opinion that the proposed
amendment will not avail to give the plaintiff a right to
maintain his suit, doth overrule the motion of the plaintiff
to amend. Then came John Francy, receiver of the Toronto
Banking Company, and Carrie S. Hilsinger, who filed petitions
herein on the 22d day of March, 1897, and moved that they be
permitted to prosecute this suit as plaintiffs for their own
benefit, or of such other lienors as may come in and
contribute to the expenses of this suit, and that they have
leave to file a bill for that purpose, which motion the court
overrules. It is therefore adjudged, ordered, and decreed
that the plaintiff's bill and amended bill be dismissed,
and that the defendant J. H. Atkinson recover of and against
the plaintiff, John Moren, his costs by him about his defense
herein expended." The plaintiff John Francy, receiver of
the Toronto Banking Company, and Carrie S. Hilsinger, appeal,
and assign as error (1) the sustaining of the demurrer; (2)
the refusal to allow the suit to proceed in the name of
Robert Francy, receiver of the Toronto Banking Company, and
Carrie S. Hilsinger.
The
transcript of the justice's record is as follows:
"State
of West Virginia, Hancock County, to wit: John Moren
vs. The American Fire-Clay Co. Suit to Recover $300,
Due for Balance for Labor Performed. Before E. A. Hart, J.
P.
"June
25th, 1895, personally came John Moren, who filed
complaint, and gave bond for attachment, in the sum of six
hundred dollars, with
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