Weldon v. Callison
| Decision Date | 19 October 1937 |
| Docket Number | 8579. |
| Citation | 193 S.E. 441,119 W.Va. 306 |
| Parties | WELDON v. CALLISON. |
| Court | West Virginia Supreme Court |
Submitted September 29, 1937.
Syllabus by the Court.
1. A decree of partition, which adjudicates the title to the real estate sought to be partitioned, the interest of the parties therein, that there are no liens or encumbrances, that the case is one in which a division should be made among the interested parties, and appoints commissioners to make partition, adjudicates the principles of the cause and is a final decree within the meaning of Code, 56-4-57, so as to preclude the filing of an answer after its entry.
2. A bill of review, after entry of a final decree within the meaning of Code, 56-4-57, will lie in only two classes of cases: First, where there is error appearing on the face of the record; and second, where, after final decree, there is discovery of new evidence, which could not previously have been discovered through the exercise of due diligence.
3. A bill of review will not lie to a decree pro confesso or to correct a decree obtained by fraud or mistake.
4. If a decree in a cause has been procured by fraud or mistake discovered after the decree is entered on the record, and after the adjournment of the term at which it is entered, it can be set aside on an original bill in a new suit, or, where a bill of review has been filed, by the amendment thereof so as to make it an original bill.
Appeal from Circuit Court, Greenbrier County.
Suit by Sallie V. Weldon against Ruby O. Callison and others. From an adverse decree, named defendant appeals.
Reversed and remanded with directions.
S. M. Austin, of Lewisburg, and W. C. Revercomb, of Charleston, for appellant.
H. L Van Sickler, of Lewisburg, for appellee Sallie V. Weldon.
This is a suit by Sallie V. Weldon against her two sisters, Alline Burns and Grace Parker, and mother, Ruby O. Callison, widow of E. F. Callison, deceased, for partition of, and allotment of dower in, lands of which plaintiff's father, E. F Callison, intestate, is alleged to have been seized at the time of his death. From a decree sustaining demurrers to her answer and her bill of review, respectively, and in denying relief sought in such pleadings, Ruby O. Callison appeals.
On May 5, 1936, the cause, which had been regularly matured, was heard on plaintiff's bill of complaint and process served on the defendants. The bill of complaint having been taken for confessed as to all of said defendants, the court ordered a division and partition of the lands mentioned and described in the said bill of complaint, and appointed commissioners to go upon the land and partition it.
On July 9, 1936, after the adjournment of the term at which the decree pro confesso was pronounced, the defendant Ruby O Callison, appellant herein, lodged an answer in the clerk's office praying that the decree be set aside and held for naught in so far as it purported to set out the amount of real estate owned by E. F. Callison at the time of his death. The answer averred that in 1926 appellant had purchased her husband's one-half interest in the "Home Place," and forty-two acres in the other tract, both described in the bill of complaint as belonging to E. F. Callison at the time of his death, although her said deed had not been recorded until after the commissioners had given notice that they were going upon the land to make partition; that prior to the entry of said decree pro confesso negotiations were being made in an effort to reach an agreement between the daughters as heirs at law and said appellant; that said appellant "was under the impression and led to believe that her three daughters were still negotiating an agreement as to the division of the real estate" with her; "that she was under this impression until notice was served upon her" by said commissioners as aforesaid; that upon finding that there would be no agreement, she consulted a lawyer as to her rights in the matter, and then, for the first time, was acquainted with the claim of plaintiff in the cause that E. F. Callison had an interest in the land which appellant claimed under her unrecorded deed.
The court, on December 9, 1936, confirmed the commissioners' report of partition, which had been filed in the office of the clerk on August 11th. In addition to the foregoing, the decree of December 9, 1936, recited that the answer (theretofore lodged with the clerk on July 9th) was permitted, over objection, to be filed; that a demurrer, charging that said answer had been filed too late, was interposed and later sustained; that, thereupon, appellant presented and was permitted, over objection, to file a paper denominated "bill of review," and a demurrer to this last-named pleading was sustained.
The bill of review sets forth the proceedings, including the decree of May 5th, and appellant's answer, and avers, in part, that "it was understood" and "she was led to understand and believe" that any division of the land described in the bill of complaint "would be subject to the conveyance to her" by her husband in 1926; that the deed had been ignored by said decree, and that she did not know of its entry until sometime thereafter; that "she did not know that her interest * * * had been excepted from said land as set out in the said decree as belonging to the said E. F. Callison, and of which he died seized"; that upon being informed of such fact, she appeared by her attorney, before the commissioners, and advised them that she had placed said deed of 1926 of record; that plaintiff and her two sisters "knew" that appellant "had said deed," even though the same had not been recorded; that the decree of May 5th was erroneous and should be reviewed, reversed, and set aside for the reason that a part of the land therein directed to be partitioned was the property of appellant, and not a part of the estate left by E. F. Callison, deceased; that such facts were known to the plaintiff and other defendants in the suit; and prayed that the said plaintiff and two other defendants be required to answer said bill of review; that the proceedings be reviewed and reversed, and for general relief.
The appellant having filed her answer after the expiration of the term at which the decree of May 5, 1936, was entered, the first question which presents itself on this appeal is whether or not said decree was final within the meaning of Code, 56-4-57. If the decree is final, the trial court did not err in sustaining the demurrer to the answer. If, on the other hand, it is not, the demurrer should have been overruled. The statute reads, in part, as follows: "A defendant may file his answer at any time before final decree, unless required to file it sooner under section fifty-six of this article, or by a proper rule of court under section four, article one, chapter fifty-one of this Code." What, then, is a "final decree" within the meaning of this section? Clearly, it is a decree which adjudicates the principles of the cause and determines the substantial merits of the controversy. It need not be the last decree rendered. It is, nevertheless, final within the meaning of this section, though there remain things to be done under it. Richmond v. Richmond, 62 W.Va. 206 57 S.E. 736; Barbour, Stedman & Herod v. Tompkins, 58 W.Va. 572, 52 S.E. 707, 3 L.R.A. (N.S.) 715; Hill, Adm'r, v. Cronin et al., 56 W.Va. 174, 49 S.E. 132; Ash v. Lynch, 72 W.Va. 238, 78 S.E. 365. The decree in question adjudicated that E. F. Callison died seized and possessed of the real estate described in the bill of complaint; that there are no liens or encumbrances against said real estate; that no dower had been assigned to the appellant, Ruby O. Callison; that the plaintiff Sallie V. Weldon, and the defendants Alline Burns and Grace Parker, are the sole heirs at law of the decedent; and that this is a proper case in which a division and...
To continue reading
Request your trial