44 W. Va. 229 | W. Va. | 1897
The transactions out of which this litigation grew originated in 1852-53. Isaac J. Vanderwerker was a contractor on the Baltimore & Ohio Railroad, and constructed a portion of said railroad, and while thus engaged became indebted to several parties. Prior to October, 1853, several suits had been brought against said Vanderwerker by different persons for debts claimed to be due them, in which suit said railroad company was summoned as garnishee; and in October, 1853, said company filed its bill of interpleader in the circuit court of Marion county, in order that the matter might be settled in one suit, as to who was entitled to the money in its hands belonging to Vanderwerker. In the bill said company stated that it was indebted to Vander-werker in the sum of five thousand, three hundred and thirty-three dollars and twenty-five cents; and in June, 1854, it paid that amount into court, as money to which Van-derwerker was entitled. This amount was not accepted as the true amount of indebtedness of said company to Van-
The case is now for the fourth time in this Court. Upon the present appeal it was argued and submitted, and an opinion (prepared by Judge Holt) handed down affirming the decree complained of. A petition for rehearing was presented by counsel, and granted, and the case reheard. A brief history of the case is given by Brannon, Judge, in the case of Railroad Co. v. Vanderwerker, decided November 18, 1889, and reported in 33 W. Va., 191, (10 S E. 289).
Counsel for the appellant, in their brief filed upon the rehearing of this cause, claim that this Court, in its opinion, overlooked the fact that there was a commissioner’s report filed in the cause, and unexcepted to, which determines all the questions of ownership as to the Cheney and other claims differently from the decree complained of, which decree was affirmed, and claim that for this reason alone the decree complained of should be reversed. The commissioner’s report referred to in said brief is the report of W. R. D. Dent, who was appointed by a decree of the circuit court of Taylor county, at its March term, 1885, with directions to ascertain and report whether all or any of the six claims mentioned in Receiver Watson’s report were assigned to the complainant, and, if so, when and by. whom said assignments were made, and upon what consideration, and whether the complainant, the Baltimore & Ohio Railroad Company, had paid and satisfied any, and, if any, which, of said claims, for which no assignments
It is contended by counsel for said company that, under section 40 of chapter 125 of the Code, there being no affidavit filed denying the facts alleged as such assignment, no proof thereof should be required. The section referred to reads: “Where a declaration or other pleading al
The defendant company also relies upon the statute of limitations. Will such plea protect it? Now when it is remembered that the object and purpose of these variious suits were to collect the plaintiff’s claims from the defendant Vanderwerker, and the money of said defend
Reversed.