Traugh v. Hart., (No. 7322)
| Decision Date | 21 February 1933 |
| Docket Number | (No. 7322) |
| Citation | 113 W.Va. 388 |
| Court | West Virginia Supreme Court |
| Parties | GEORGE H. Traugh v. Elizabeth T. Hart et al. |
Appeal and Ebrok
The general rule, denying an appeal from a decree for costs alone in a chancery suit, does not apply in a case involving clear abuse of the trial court's discretion in fixing costs.
Appeal from Circuit Court, Marion County.
Suit by George H. Traugh against Elizabeth T. Hart and others. From the decree rendered, J. M. Swan, receiver of the Union National Bank of Fairmont, appeals.
Reversed and remanded.
Victor II. Shaw, and D. H. Hill Arnold, for appellant. James F. Burns, for appellee.
This appeal involves the liability for costs, as between the plaintiff and a trust lien creditor, in a suit to enforce a judgment lien.
September 28, 1922, Elizabeth T. Hart conveyed to William S. Haymond, trustee, a parcel of real estate in the; City of Fairmont, to secure the payment of $7,000 to the Peoples National Bank of Fairmont, which debt and security was later acquired by the Union National Bank of Fairmont. Upon the death of William S. Haymond, Frank C. Haymond was substituted trustee. April 30, 1930, George H. Traugh obtained judgment against said Elizabeth T. Hart before a justice for $143.00. Frank C. Haymond, trustee, having advertised the property for sale at the instance of J. M. Swan, receiver of said Union National Bank, Traugh instituted this suit dune 3, 1931, to enjoin a sale under the trust deed and to secure a judicial sale of the property to satisfy his judgment (which had been reduced by a credit of $15.00) and other liens thereon in the order of their priority. The bill, after setting up the judgment of plaintiff as a lien on the real estate, enumerated a number of prior judgments aggregating (with interest) $1,540.27 as "valid and existing liens" against the property, and alleged that plaintiff did not know the exact amount of the trust deed lien, but that he was informed, believed and averred that "the greater part" of the original debt was still unpaid. On June 10. 1931. an injunction was awarded, in the case prohibiting a sale under the deed of trust, notwithstanding the oral protest of the receiver in open court (not noted in the order but otherwise appearing in the record), on the ground that the property would* not sell for a sufficient sum to pay the trust deed lien. The cause was referred to a commissioner in chancery who filed his report October 24, 1931, showing liens prior to the judgment of plaintiff in their order of priority, as follows: taxes $1,295.14, amount of the original debt and interest under...
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Blair v. Dickinson, 10399
...made to appear, however, that the discretion of the trial court has been abused, its order awarding costs may be reviewed. Traugh v. Hart, 113 W.Va. 388, 168 S.E. 137; State v. Moore, 77 W.Va. 325, 87 S.E. 367; Castle v. Castle, 69 W.Va. 400, 71 S.E. 385; Nutter v. Brown, 58 W.Va. 237, 52 S......
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... ... 138 MILLER TODD COAL CO. v. ADRIAN FUEL CO. et al. No". C. C. 601.Supreme Court of Appeals of West Virginia.March 14, 1939 ... \xC2" ... trial court shall, of course, await the event. Traught the event. Traugh v ... Hart ... ...
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...in certified cases. The manner of taxation of the ultimate costs in the trial court shall, of course, await the event. Traugh v. Hart, 113 W. Va. 388, 168 S. E. 137; Lay v. Phillips, 116 W. Va. 60, 178 S. E. 523. ...