Silman v. Stump

Decision Date31 March 1900
Citation35 S.E. 833,47 W.Va. 641
PartiesSILMAN v. STUMP et al.
CourtWest Virginia Supreme Court

BILL OF REVIEW—DEMURRER.

A petition filed by a widow on behalf of herself and infant children, alleging that their property has been sold and sacrificed under decrees deceitfully obtained by a creditor of the deceased husband and father, should be treated as an original bill in the nature of a bill of review, and should be properly matured before being finally heard; and it is error to dispose of the same adversely on mere ex parte affida vits, without appearance thereto, except by a disinterested party who demurs, and thereby admits the truth of the allegations of such petition.

(Syllabus by the Court.)

Appeal from circuit court, Kanawha county; P. A. Guthrie, Judge.

Suit by Peter Silman against J. L. Stump and others. Judgment decrees for plaintiff, and defendant Mattie A. Savage appeals. Reversed.

W. S. Laidley and T. S. Clark, for appellant.

J. P. Corke and Watts & Ashby, for appellee.

DENT, J. Mrs. Mattie A. Savage appeals from four several decrees of the circuit court of Kanawha county in the case of Peter Silman, administrator, against J. L. Stump and others. This is a suit instituted by Peter Silman, administrator of James R. Savage, deceased, against the widow, heirs, and creditors of said decedent to subject his real estate, consisting of a house and lot, to the payment of his debts. The suit appears to have been matured regularly. Guardian ad litem was appointed for the infant defendants. An answer was filed for the appellant admitting the debt of J. L. Stump, and asking that her dower be set aside to her in money. The other adult defendants answer, and a reference is had to a commissioner, who makes his report. No exceptions thereto, and the report is confirmed. A decree for sale is entered. The property is sold, sale reported, and confirmed without exception. The Glen Elk Company debt is sustained by the deed of trust, and is admitted by the appellant. The Stump debt is admitted to be correct by the appellant, and is sustained by Stump's evidence, the only two persons having knowledge of its justness. In absence of contest over them, the evidence in support of each is sufficient to establish at least a prima facie case. These are the only two debts presented. The appellant having agreed to take her dower in money, the court could not determine the same until sale of the property. She was not entitled to dower as against the purchase money, nor the costs made necessary to enforce the same. Costs partake of the nature of the debt in behalf of which they accrue. She is entitled to dower against the Stump debt and the costs made necessary to enforce the same. The dower in the case arising from the sale of the land is not of sufficient money value to give this court Jurisdiction. Nor could the court review the errors in the taxation and allowance of costs for the same reason. There is no error prejudicial to the appellant in any of the decrees entered prior to the filing of her petition of which this court has jurisdiction. The only questions of error, then, of which this court has jurisdiction, arise on this petition, which must be regarded as an original bill in the nature of a bill of review. Springston v. Morris (decided by this court, and not yet offi-dally reported) 34 S. E. 766. While no parties are formally made to this bill, which is the better practice, yet the plaintiff and defendants in the original bill, and the purchaser of the property, all of whom are necessary parties thereto, are named therein; and, if they did not appear without should have been summoned to answer the same. This bill, although not stating so succinctly, appears to have been filed by ...

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7 cases
  • Work v. Rogerson
    • United States
    • Supreme Court of West Virginia
    • 4 Mayo 1965
    ...... Meyers v. Meyers, 88 W.Va. 622, pt. 1 syl., 107 S.E. 412; Kelley v. Thompson, 87 W.Va. 694, pt. 1 syl., 106 S.E. 230; Silman v. Stump, 47 W.Va. 641, 35 S.E. 833. See also Weldon v. Callison, 119 W.Va. 306, pt. 4 syl., 193 S.E. 441; McLanahan v. Mills, 73 W.Va. 246, pt. 5 ......
  • Mankin v. Dickinson
    • United States
    • Supreme Court of West Virginia
    • 6 Abril 1915
    ...will be treated as an original bill. Martin v. Smith, 25 W. Va. 579; Pethtel v. McCullough, 49 W. Va. 520, 39 S. E. 199; Silman v. Stump, 47 W. Va. 641, 35 S. E. 833; Jones v. Crim & Peck, 66 W. Va. 301, 303, 66 S. E. 367; McLanahan v. Mills, 73 W. Va. 246, 80 S. E. 351. The first ground al......
  • Jones v. Crim
    • United States
    • Supreme Court of West Virginia
    • 23 Noviembre 1909
    ...be reversed in an appellate court, because equity will regard the substance, and not the mere form, of the pleading. Silman v. Stump, 47 W. Va. 641, 35 S. E. 833; Strum v. Fleming, 22 W. Va. 404; Shenandoah Val. Bank v. Shirley, 26 W. Va. 563; Pethtel v. McCullough, 49 W. Va. 520, 39 S. E. ......
  • Jones v. Crim
    • United States
    • Supreme Court of West Virginia
    • 23 Noviembre 1909
    ...should be reversed in an appellate court, because equity will regard the substance, and not the mere form, of the pleading. Silman v. Stump, 47 W.Va. 641, 35 S.E. 833; Strum v. Fleming, 22 W.Va. 404; Shenandoah Bank v. Shirley, 26 W.Va. 563; Pethtel v. McCullough, 49 W.Va. 520, 39 S.E. 190.......
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