Palmer v. Magers, (No. 3629.)

CourtSupreme Court of West Virginia
Writing for the CourtPOFPENBARGER
Citation102 S.E. 100
PartiesPALMER . v. MAGERS.
Docket Number(No. 3629.)
Decision Date27 January 1920

102 S.E. 100

PALMER .
v.
MAGERS.

(No. 3629.)

Supreme Court of Appeals of West Virginia.

Jan. 27, 1920.


(Syllabus by the Court.)
[102 S.E. 101]

Error to Circuit Court, Marshall County.

Suit by Linzy Palmer against Everett E. Magers. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

J. Howard Holt, of Moundsville, for plaintiff in error.

D. B. Evans and Martin Brown, both of Moundsville, for defendant in error.

POFPENBARGER, J. [1] The first complaint on this writ of error to a judgment for the plaintiff, in an action of unlawful detainer, is based on the overruling of a motion for a continuance. The affidavit fails to show requisite diligence. The case was set for trial and tried in Marshall county October 17, 1918, and the process for the witness was sent to Kanawha county October 11, 1918, and came back with a return of "Not found'' indorsed thereon. The meagerness of time allowed may have prevented diligent search for the witness, and the affidavit fails to show that the writ was accompanied by information to the officer as to the residence or location of the witness in Kanawha county, which might have enabled him to serve the subpcena. Three or four days is a very short period in which to locate a stranger in a large and populous county. A serious effort to obtain the attendance of the witness, under such circumstances, would have necessitated ascertainment of his place of residence and warning to him of intention to require his attendance. Wytheville Ins. & B. Co. v. Teiger, 90 Va. 277, 283, 18 S. E. 195; R. & M. Railroad Co. v. Humphreys, 90 Va. 425, 18 S. E. 901." Another fatal defect in the case made for a continuance was failure to prove attendance of the absent witness at the next term could probably be secured, or his deposition taken. Since an allowance of a continuance on account of the absence of a.witness whose evidence can never be obtained would be useless and idle, this fact should always be shown in support of the motion. Phillips v. Com., 90 Va. 401, 18 S. E. 841; State v. Brown, 62 W. Va. 546, 59 S. E. 508.

. The land in controversy has an area of not more than 2 acres, and the controversy turns on the location of a division line. The parties derived their titles from a common source; their farms having once constituted a larger one owned by Miles Bonar, and containing 354 acres, as surveyed by W. V. Hukill, in March, 1902. By a deed dated October 17, 1904, Bonar conveyed it to W. B. Hicks, who had a division line run through it by S. Howe Bonar, an engineer, cutting it into two parts containing, respectively, as estimated by the surveyor, 159.8 acres and 196.5 acres, for conveyances to two or more persons named Woodruff. By a deed dated April 1, 1905, Hicks conveyed the larger part to Elias B.. Woodruff, who conveyed it to the plaintiff by a deed dated June 21, 1906. Hicks conveyed the other part to Elias B. and Silas H. Woodruff by a deed dated April 1, 1905, and they reconveyed it to him in 1906. By a deed dated September 4, 1907, he conveyed it to Everett E. Magers, the defendant.

The original Bonar tract was very irregular in form and the division line has two angles in it breaking it into three parts. Treated as a whole, it begins on the S. L. Johnson line, which is also the southeast line of the Bonar tract, and runs across to the boundary line between the Bonar tract and the M. B. Pierce farm. The controversy involves only the location of the northern end of the division line running from the second angle to the Tierce line, a distance of 800 or 900 feet. The monument at that angle called for by the deed, is "a stake near a large sassafras, " and its location is the principal bone of contention. As claimed by the plaintiff, it stood about 70 feet northwest of the sassafras, and, as claimed by the defendant, not over 6 feet northwest thereof.

Plaintiff predicates his case largely upon his deed, the relation in point of time between his deed and that of the defendant, and the testimony of the surveyor, Bonar. His deed antedates that of the defendant and the latter calls for a stake in the Pierce line as the "corner to Linzy Palmer, " and his line runs thence "with Palmer's line S. 3° 30' W. 13.76 chains to a stake near a large sassafras, " the call in that deed for

[102 S.E. 102]

the distance between the monument last mentioned and the one at the other angle in the division line, a stake and large stone, 15.12 chains, going about 70 feet northwest of the large sassafras tree. Bonar swears he established the corner at that point. He also says he was directed to run the line so as to put 200 acres in the larger or eastern portion, and that he ran a trial line which placed the stake 5 1/2 feet from said tree and then, by final survey, moved it 06 feet farther toward the northwest and removed the last line that distance in that direction, to enable him to change his first line, the one running^ from the Johnson line, some distance in the opposite direction, in order to leave a desirable building site in the smaller tract, and at the same time leave the areas of the two parcels nearly the same as they were fixed by the trial survey. His trial line began in the...

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23 practice notes
  • Campbell v. Campbell, No. 12122
    • United States
    • Supreme Court of West Virginia
    • February 27, 1962
    ...201; Gall v. Cowell, 118 W.Va. 263, 190 S.E. 130; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Company, 78 W.Va. 34, 88 S.E. 595; Kelley v. Aetna Insurance Company, 75 W.Va. 637, 84 S.E. 502; Sims v. Carpenter, Fr......
  • Mulroy v. Co-operative Transit Co., CO-OPERATIVE
    • United States
    • Supreme Court of West Virginia
    • November 13, 1956
    ...Kap-Tex, Inc. v. Romans, 136 W.Va. 489, 67 S.E.2d 847; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Company, 78 W.Va. 34, 88 S.E. 595; Kelley Page 73 v. Aenta Insurance Company, 75 W.Va. 637, 84 S.E. 502; Sims v. ......
  • Rees Elec. Co. v. Mullens Smokeless Coal Co., No. 10724
    • United States
    • Supreme Court of West Virginia
    • November 1, 1955
    ...Romans, 136 W.Va. 489, 67 S.E.2d 847; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. [141 W.Va. 256] Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Company, 78 W.Va. 34, 88 S.E. 595; Kelley v. Aetna Insurance Company, 75 W.Va. 637, 84 S.E. 502; Sims v. Carpenter......
  • Hollen v. Linger, No. 12556
    • United States
    • Supreme Court of West Virginia
    • November 29, 1966
    ...v. Board, 135 W.Va. 806, 65 S.E.2d 201; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; [151 W.Va. 267] Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Kelley v. Aetna Insurance Company, 75 W.Va. 637, 84 S.E. 502; Sims v. Carpenter, Frazier and Company, 68 W.Va. 223, 69 S.E. 794; Coalmer v......
  • Request a trial to view additional results
23 cases
  • Campbell v. Campbell, No. 12122
    • United States
    • Supreme Court of West Virginia
    • February 27, 1962
    ...201; Gall v. Cowell, 118 W.Va. 263, 190 S.E. 130; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Company, 78 W.Va. 34, 88 S.E. 595; Kelley v. Aetna Insurance Company, 75 W.Va. 637, 84 S.E. 502; Sims v. Carpenter, Fr......
  • Mulroy v. Co-operative Transit Co., CO-OPERATIVE
    • United States
    • Supreme Court of West Virginia
    • November 13, 1956
    ...Kap-Tex, Inc. v. Romans, 136 W.Va. 489, 67 S.E.2d 847; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Company, 78 W.Va. 34, 88 S.E. 595; Kelley Page 73 v. Aenta Insurance Company, 75 W.Va. 637, 84 S.E. 502; Sims v. ......
  • Rees Elec. Co. v. Mullens Smokeless Coal Co., No. 10724
    • United States
    • Supreme Court of West Virginia
    • November 1, 1955
    ...Romans, 136 W.Va. 489, 67 S.E.2d 847; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. [141 W.Va. 256] Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Company, 78 W.Va. 34, 88 S.E. 595; Kelley v. Aetna Insurance Company, 75 W.Va. 637, 84 S.E. 502; Sims v. Carpenter......
  • Hollen v. Linger, No. 12556
    • United States
    • Supreme Court of West Virginia
    • November 29, 1966
    ...v. Board, 135 W.Va. 806, 65 S.E.2d 201; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; [151 W.Va. 267] Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Kelley v. Aetna Insurance Company, 75 W.Va. 637, 84 S.E. 502; Sims v. Carpenter, Frazier and Company, 68 W.Va. 223, 69 S.E. 794; Coalmer v......
  • Request a trial to view additional results

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