Stafford v. Jones

• Decision Date: 02 December 1913
• Citation: Stafford v. Jones, 73 W. Va. 299, 80 S. E. 825 (W. Va. 1913)
• Parties: STAFFORD v. JONES ET AL. HOCKENSMITH WHEEL & MINE CAR CO. v. JONES ET AL.
• Court: West Virginia Supreme Court

80 S.E. 825

73 W.Va. 299

STAFFORD v. JONES ET AL.

HOCKENSMITH WHEEL & MINE CAR CO. v. JONES ET AL.

Supreme Court of Appeals of West Virginia.

December 2, 1913

Submitted November 25, 1913.

Rehearing Denied Feb. 12, 1914.

Syllabus by the Court.

The following clause in a decree, made in a judgment creditors' suit, referring the cause to a master commissioner to ascertain and report upon liens, viz.: "But before proceeding to execute this decree said commissioner shall give ten days' notice of the time and place of his sittings to all attorneys of record herein, and shall publish a like notice for four weeks in some newspaper published in Logan county"--is, in effect, a direction to the commissioner to convene before him the lienors in the manner, and according to the form of notice, provided in section 7, c. 139, Code 1906.

It is not reversible error to give such notice after the plaintiff has obtained leave to amend his bill bringing in new lienors and the cause has been remanded to rules for the maturing of such amended bill; the cause, as to the original bill, being then matured for reference, and it appearing that such new parties answered at rules, and filed their claims with the commissioner. Error justifying the reversal of a decree must be prejudicial to the party complaining.

A decree in the alternative, authorizing a special commissioner to first offer to lease the debtor's land at public bidding for a term of five years, and, if the highest bid is not enough to pay the debts, then to sell it at the same time and place, is not erroneous.

It is not error to decree a sale of the judgment debtor's land for cash when a trust deed given thereon to secure a debt then past due, and which is prior to the judgments authorizes the trustee to sell for cash.

Appeal from Circuit Court, Logan County.

Two suits, one by Minnie B. Stafford, and the other by the Hockensmith Wheel & Mine Car Company, both against H. C Jones and others. From the decrees, the defendant named appeals. Affirmed.

Campbell, Brown & Davis, of Huntington, for appellant.

Ritz & Ritz, of Bluefield, J. L. Stafford, of Williamson, and E. H. Greene, of Logan, for appellees.

WILLIAMS J.

The two above-styled suits were brought by judgment creditors of H. C. Jones against him and others to enforce liens against his lands situated in Mercer, Mingo, and Logan counties. The Stafford suit was brought in Mingo county, and was once before in this court on appeal, and is reported in 65 W.Va. 567, 64 S.E. 723. But questions not then involved are presented on this appeal. The Hockensmith Wheel & Mine Car Co. Case was brought in the circuit court of Logan county, and the former case was removed to the circuit court of Logan county, consolidated with the latter, and the two were heard together, and a final decree was entered on the 4th of May, 1910, confirming Commissioner Bland's report, ascertaining the amounts and priorities of liens, and decreeing a rental of the lands in Mingo and Logan counties, and a sale of the lands in Mercer county. H. C. Jones has appealed.

The first error assigned is that the order of reference did not direct Commissioner Bland to give notice to the lienholders, as required by law. The order, made February 11, 1910, contains this provision: "But before proceeding to execute this decree said commissioner shall give ten days' notice of the time and place of his sittings to all attorneys of record herein, and shall publish a like notice for four weeks in some newspaper published in Logan county." True this language does not expressly authorize the commissioner to convene the lienors; but it impliedly does so, as there could have been no other purpose in the language of the decree to "publish a like notice for four weeks in some newspaper published in Logan county." The statute (section 7, c. 139, Code 1906) prescribes the form of such notice, and the commissioner did, in fact, publish it according to that form, and for the time required by the statute. There has been a substantial compliance with the law in this respect. Moreover, the judgment debtor alone is complaining, and it does not appear that there is any lienor who was not made a party to one or the other of the two suits, and whose claim was not presented to, and passed on, by the commissioner.

The order of reference also permitted plaintiff to file an amended bill, at rules, and, before the cause was matured for hearing on the amended bill, the commissioner gave notice and proceeded to take accounts, and this is assigned as error. Such proceeding may have been irregular; but appellant is not prejudiced thereby. The new parties, brought in by the amended bill, filed their answers, and subjected themselves to the jurisdiction of the court. Their liens were presented to, and were passed upon by, the commissioner, and they are not complaining. If it be error at all, it relates only to procedure, and is not prejudicial to appellant, and he cannot complain of it. Reed v. Nixon, 36 W.Va. 681, 15 S.E. 416.

The next assignment is that the court erroneously decreed the land to be sold; the record showing that the rents, issues and profits thereof, for...