Prichard v. Nelson
Decision Date | 23 July 1943 |
Docket Number | No. 5077.,5077. |
Citation | 137 F.2d 312 |
Parties | PRICHARD v. NELSON et al. |
Court | U.S. Court of Appeals — Fourth Circuit |
Glenn W. Ruebush, of Harrisonburg, Va., for appellant.
A. M. Prichard, in pro. per., and George S. Wallace, of Huntington, W. Va. (Virginius R. Shackelford, of Orange, Va., on the brief), for appellees.
Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges.
This is an action brought in the District Court of the United States for the Western District of Virginia, by A. M. Prichard, the appellant, herein referred to as the plaintiff, against the appellees, C. P. Nelson and Mary R. Nelson, herein referred to as the defendants.
The plaintiff is a citizen of the State of Virginia and the defendants are citizens of the State of West Virginia. The object of the action was to recover from the defendants certain sums claimed to be due on a bond executed by them guaranteeing the contract of one H. A. Robson, made with the plaintiff. Answer was filed by the defendants and certain stipulations were entered into as to the facts. A motion was then made on behalf of the defendants for a summary judgment upon the pleadings and the stipulations. After argument, the judge below on December 9, 1942, filed a written opinion holding for the defendants and granting the motion. Judgment was entered for the defendants. A petition for re-hearing was filed by the plaintiff and on December 30, 1942, the district judge filed an opinion denying the motion for rehearing and refusing to set aside the judgment. From this action this appeal was brought.
There is no dispute as to the material facts which, as found by the judge below, are as follows:
There were a number of payments made to plaintiff out of the proceeds of Robson's property that was sold and plaintiff purchased some bonds in the open market with the money so received. On May 8, 1939, Robson died and the plaintiff collected the sum of $50,669.30 from the life insurance policy assigned to him as security on the contract and again the plaintiff purchased bonds on the open market. The plaintiff had received rents assigned to him aggregating $325.00 a month, until June, 1939, after which the plaintiff received rents on one of the properties of $250.00 a month.
In the meantime Robson had become involved as a bondsman for the Huntington Bank & Trust Company to secure certain deposits made in said bank and, the bank having failed, a suit was begun in the Circuit Court of Cabell County, West Virginia, taking the form of a general creditors suit to subject the lands of Robson to the liens thereon. This litigation became complicated and had many ramifications and the plaintiff on May 6, 1935, filed an answer to the amended bill in this suit in which he set out his claim against Robson. The defendants were parties to this suit because of certain transfers made to them by Robson. Pending the settlement of the litigation Robson died (May, 1939) and the suit was revived in the name of the heirs at law, the executor of the estate of Robson and the several devisees under his will. On March 7, 1940, a decree was entered referring the matter to a commissioner with directions to state and report, among other things, an account of all the property of the said Robson and of the liens thereon and their priorities. The commissioner proceeded with the execution of this reference and among the claims presented and upon which he heard evidence was that of the plaintiff. Prior to this time plaintiff had received (in 1935) the $30,000.00 from the sale of Robson's interest in the Fayette County land and (in 1939) the $50,669.30 from the insurance on Robson's life. The claim...
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