Pittsburgh v. Et Al.

• Decision Date: 14 February 1922
• Citation: 90 W.Va. 277
• Court: West Virginia Supreme Court
• Parties: Pittsburgh & West Virginia Gas Co. v. Silas Shreve et al.

90 W.Va. 277

Pittsburgh & West Virginia Gas Co.

v.Silas Shreve et al.

Supreme Court of Appeals of West Virginia.

Submitted February 7, 1922.

Decided February 14, 1922.

Appeal and Error Supreme Court Cannot Review Decree Dismissing Part of Answer Setting up Affirmative Relief, Either by Voluntary Certification, or Parties' Joint Application.

Where a demurrer to an answer in the nature of a crossbill has been sustained and a decree entered dismissing the answer so far as it sets up matter for affirmative relief, the appellate court does not have jurisdiction to review and pass upon the questions raised by the demurrer to the affirmative relief sought, upon certification to it by the judge of his own volition or upon the joint application of the parties, under the last clause of sec. 1, chap. 135, Code.

Case Certified from Circuit Court, Wetzel County.

Action by the Pittsburgh & West Virginia Gas Company against Silas Shreve and others. Certified by the circuit court upon its own motion for review of its action in sustaining a demurrer to the answer in the nature of a cross-bill.

Dismissed.

M. H. Willis, for plaintiff.

T. M. Mclntire, G. W. Co field, and D. V. Lemon, for defendants.

Lively, Judge:

The circuit court upon its own motion has certified to this court, for review its action in sustaining a demurrer to an answer in the nature of a cross-bill, as provided in the last clause of sec. 1, chap. 135, Code.

Plaintiff filed its bill of interpleader in which it alleges that it has certain sums of moneys in its hands, as the lessee of a tract of twenty-two acres formerly owned by Elizabeth and Elija Tuttle, derived from development of gas thereon in paying quantities, and to which sums defendants assert conflicting claims, based on certain conveyances of the land and gas therein made by the Tuttles. Defendants W. V. Gallagher, T. C. Gallagher, Delia Gallagher, H. J. Lewis and Lyle Martin filed their answer in the nature of a cross-bill in which they aver that their claims to the moneys are based primarily upon a deed made by the Tuttles on the 9th of May, 1898, which conveyed to T. C. and W. 0. Gallagher "the one sixteenth part of all the oil and gas within and under the following described land" (the 22 acres); that the deed was not correctly drawn by the scrivener; that the intention and understanding of the parties thereto was that the grantees should have one-half of the royalties and one-half of the rentals in the oil and gas in said land, and that the Tuttles (who are now dead) and those claiming under them, their co-defendants, always understood and considered that said Gallaghers owned one-half the royalties and rentals and never made any other claim until after the development of the land for gas under plaintiff's lease and the accrual of gas rentals. They prayed that their co-defendants, the adverse claimants, be made parties defendant to their cross-bill; that the Tuttle deed of 1898 be reformed so as to conform to the true intent of the parties thereto; and that they be decreed one-half of the gas rentals derived from said land and thereafter accruing. Silas Shreve and the other adverse claimants...