Plaintiff v. Robinson

• Decision Date: 17 December 1881
• Citation: 19 W.Va. 159
• Parties: Dick et als. v. Robinson, Adm'r et al.*(Patton, Judge, Absent,)
• Court: West Virginia Supreme Court

19 W.Va. 159

Dick et als.

v.Robinson, Adm'r et al.

*(Patton, Judge, Absent,)

Supreme Court of Appeals of West Virginia.

Submitted January 19, 1880.

Decided December 17, 1881.

1.A decree dismissing a bill as to one defendant is as to such, defendant a final decree.

2.A motion to correct a decree rendered by default under sec. 5 of chap, 134 of the Code is barred in five years from the date of the decree.

3.A decree confirming a sale of real estate will not b« reversed for an error in the decree ordering the sale, when no steps have been taken in the court below before confirmation to review the said decree, except perhaps in some cases, where the purchaser is a party to the suit.

Appeal from and supersedeas to decrees of the circuit court of the county of Greenbrier rendered respectively on the 25th day of June, 1877, on the 26th day of November, 1877, on the 17th day of June, 1878, and the 14th day of November, 1878, in a cause in said court then pending wherein David Dick and others were plaintiffs, and Wallace Robinson, adm'r, and others were defendants, allowed upon the petition of Isaac Cales and Austin Handly Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the decrees appealed from.

The facts of the case are stated in the opinion of the Court.

J. W. Davis for appellants cited the following authorities: 7 W. Va. 356; 10 Gratt. 291; 4 W. Va. 146; Acts 1872, p. 168; 1 Gratt. 407; 6 Leigh 196; 3 Gratt. 148; Id. 134;

8 Gratt. 292; J. J. Marsh. 538; 2 Bibb 589; 2 Dana 422; 8 Dana 12; Pow. Cont. 39, 8 B. Mon. 103; 4 Dana 403; 8 Dana 75; 9 Dana 391; Id. 396; 3 Mon. 267; 7 B Mon. 62; 12 B. Mon. 472; 4 B. Mon. 263; 6 Gratt. 320; 10 Gratt. 180; 13 W. Va. 474; 6 Mon. 163; 15 Gratt. 551; 18 Gratt. 652; 7 Dana 52; 8 B. Mon. 344.

R. F. Dennis for Handly, cited the following authorities: 2 Gratt. 117; 21 Gratt. 201; 25 Gratt. 507; 5 W. Va. 264; 6 W. Va. 1; 11 W. Va. 334; 14 W. Va. 432; 25 Gratt. 410; 30 Gratt. 192; Id. 434; Code, ch. 134, § 5; 28 Gratt. 646; 1 Dan. Chy. Pr. (4th ed.) 959 et seq; 2 Dan. Chy. Pr. (4th ed.) 994, note 3, 995, notes 1, 2; Rob. (Old) Pr. 406, 407; 2 Munf. 162.

A. C. Snyder for appellees cited the following authorities; 30 Gratt. 94; 14 W. Va. 432; 10 W. Va. 748; 11 W. Va 399; 10 W. Va. 753; Code, ch. 133, §5; 7 Leigh 346; 28 Gratt. 646; 29 Gratt. 392; 18 Gratt. 364; 7 W. Va. 348; 5 W. Va. 199; 6 W. Va. 417; Story Eq. P1. § 271; 1 Dan. Ch. Pr. (3d Am. ed.) 342 and notes; Id. 345 and notes; 7 J. J. Marsh. 37; 4 Rand. 74; 15 W. Va. 444; 11 W. Va. 274; 1 Freeman (Miss.) 721; 17 How. 130; 1 Edwds. Chy. 46; Code, ch. 132, § 8; 10 Gratt. 154; 6 Gratt. 320.

Johnson, President, announced the opinion of the Court:

In December, 1869, David Dick, Virginia Bragg, Isaac Cales and Bethene his wife, late Dick, tiled their bill in the circuit court of Greenbrier county alleging, that in 1857 John Dick died intestate in the said county of Greenbrier leaving his children and heirs at law surviving him, John Dick, David Dick, Joseph Dick, Mary Sogers late Dick, Virginia Bragg late Dick, Bethene Cales, late Dick, who intermarried with Isaac Gales; that Joseph Dick in 1857 in the county court of Green- brier county took out letters of administration on the estate of the said John Dick deceased; that a large estate came into the hands of said administrator, which he rented; that in the year 1861 said Joseph Dick died intestate in the said county; that in 1863 " Austin Handly as a confederate administrator took possession of and administered the estate of said Joseph Dick, and what amount of property came to his hands as administrator of Joseph Dick your plaintiffs are not advised;" that Joseph Dick died leaving as his children, heirs and distributees Martha, who intermarried with Joseph Bragg, Mary Ann Dick, Elizabeth Dick, David Dick and Ellen Dick, the last four infants; that on the day of, 1869, Wallace Robinson was appointed administrator de bonis non of John Dick deceased; that on theday of, 1869, said Robinson was also appointed administrator of the estate of Joseph Dick deceased. The plaintiffs charge, that their ancestor, John Dick, left valuable lands lying in Greenbrier county, which have not been partitioned among his heirs. The prayer of the bill is, that the administration account of Joseph Dick may be settled, and his estate may be made liable for the waste committed by him of the estate of his father and intestate John Dick; that the account of Austin Handly as administrator of Joseph Dick may be settled; that the lands of John Dick may be partitioned among his heirs; and that the accounts of Wallace Robinson as administrator of the estate of Joseph Dick and administrator de bonis-non of John Dick may be settled; and for general relief.

The plaintiffs by leave of the court on the 6th day of September, 1878, were permitted to amend their bill by making Joseph W. Fox and Mary his wife parties defendant to the bill; and thereupon the said parties by J. W. Harris their attorney entered their appearance and took time to answer. On the 6th day of April, 1871, the court reciting, that the process having been executed and the defendants failing to answer, the cause was heard upon the bill taken for confessed and upon "the answer of Joel McPherson, guardian ad litem for the infant defendants, Mary Ann Dick, Elizabeth Dick, David Dick and Ellen Dick; and the cause was referred to a master-commissioner to settle the account of Joseph Dick, administrator of John Dick, deceased, and also the account of Wallace Robinson, the administrator de bonis non of John Dick, deceased, and to settle the accounts of said Robinson, administrator of Joseph Dick, deceased. And the court then decreed: "And the court being of opinion, that the confederate administration of Austin Handly was a nullity and left him a more tresspasser, the bill is dismissed as to him without costs, leaving the parties to their remedy at law against him."

The commissioner filed his report and found the estate of Joseph Dick indebted to the estate of John Dick, principal and interest $1,464.00,

On the 25th of November, 1871, the court confirmed said report. In the same decree the court referred the cause to commissioner John A. Preston to convene the creditors of Joseph Dick and John Dick, ascertain the debts and priorities and report an account between the heirs of John Dick, &c, and to report the different parcels of lands of which Joseph Dick died seized. The said commissioner returned his report on the 4th day of April, 1872. He reports nothing against the estate of John Dick. Nothing further was found against the estate of Joseph Dick. He also reports, that of the indebtedness of Joseph Dick to the estate of John Dick, each distributee is entitled, there being six including the heirs of Joseph Dick, to recover $246.56. He ascertains that Joseph Dick owned four tracts of land, one of two hundred acres, one of one hundred and ten acres, one of twenty-seven acres and one of fifty-eight acres. On the 19th day of April, 1872, there being no exception to said report the court by its dccree confirmed the same and reciting the indebtedness of the estate of Joseph Dick to the estate of John Dick, and that there was no personal property to pay said indebtedness, appointed a commissioner to sell so much of the said lands as was necessary to pay said indebtedness to the five heirs of said John Dick, being five sixths of the whole indebtedness, the heirs of Joseph Dick being entitled to be credited with the other sixth.

The commissioner reported, that he had sold the tract of two hundred acres and that of twenty-seven acres to Isaac Cales, said Cales paying the portion in cash required and executing his bond with security for the remainder, and to James Cales the tracts of fifty-eight acres and one hundred and ten acres. On the 8th day of October, 1872, the report of sale not being excepted to was confirmed; and a decree was entered appointing a commissioner to collect the residue of the purchase-money and on payment thereof to convey the land so sold, and provided for a distribution of said money. The decree concludes:" And this case is directed to be dropped from the docket, and writs of habere facias posessionem are awrded the respective purchasers to put them in possession of the tracts of land purchased by them respectively." On the 17th day of April, 1873, notice by Martha Richman and husband, Mary Ann Fox and husband, David H. Dick, Elizabeth Bragg and husband, and Nancy Ellen Fox and husband, was served on David Dick, Virginia Bragg and others, which notice is as follows:" You are hereby notified, that on the first day of the next term of the circuit court of Greenbrier county, West Virginia, we will move said court to reverse, set aside and annul two certain decrees entered, the one on the 19th day of April, 1872, and the other on the 8th day of October, 1872, by said court in a suit in equity then pending, in which you, David Dick," and others, repeating the names," and we and others were defendants, for errors apparent upon said decrees, and the proceedings, on which they were pronounced, among which are the following: First, the process was not legally executed on us as defendants. Second, the return shows that Mary Ann Fox was then married, her husband was not served, nor was she by her proper name made defendant to said suit. Third, the bill was erroneously taken for confessed against four of us who were then infants. Fourth, the court erred in confirming the reports of Commissioners Walker and John A. Preston. Fifth, it was error to dismiss the bill as to Austin Handly, administrator of Joseph Dick deceased. Sixth, neither of said decrees was warranted, by the allegations of the bill, or the proofs in the cause."

Austin Handly appeared and answered and opposed the reversal of the decrees. In his answer he says:" By a decree entered in this cause more than five years ago the bill was dismissed as to him (see the decree) and...