12 W. Va. 562 | W. Va. | 1878
delivered the opinion of the Court:
The first question presented by the record is, have the appellants, creditors of Daniel Circle, and parties to the last of the three suits, that of Alphin v. Circle’s ex’or and others, but not parties to either of the other two suits, any right to appeal from this decree of June 22, 1876, entered in the three suits which were heard together but not consolidated? The cases of Kyle’s ex’or v. Kyle, 1 Gratt. 526, and Hill et ux. v. Proctor, 10 W. Va. 59, show that there are cases in which an appeal may be taken from a decree entered in two cases which have been heard together, by a party to one of the suits, though he was no party to the other suit, and that on suck an appeal in some cases, the whole of the decree is
The cases of Anderson et al. v. DeSoer, and the same v. Gallegoe’s adm’r et al., 6 Gratt. 363, throw much light on this question. In those cases, on July 24,1819, DeSoer instituted a suit in equity against Grivegnee, a non-resident, attaching certain debts and effects in the hands of Gallegoe’s ex’ors, the home defendants, belonging to Grivegnee ; more than two years afterwards, Anderson, Blair <fe Anderson, instituted a chancery suit in the same court, claiming that these debts and effects belonging to Grivegnee, in the hands of Gallegoe’s ex’ors had, for a valuable consideration, been equitably assigned to them by Grivegnee on the 20th day of July, 1819. This bill makes no allusion to the previous attachment suit of DeSoer, which attached the same effects; nor did the bill of DeSoer make any allusion to the assignment to Anderson, Blair & Anderson; nor were the plaintiffs in either of these suits made defendants in the other. These causes were heard together, and in February, 1841, the court rendered a decree against Grivegnee in favor of each of the plaintiffs, for their debts respectively, and made a decree against the representatives of Gallegoe’s ex’ors, giving to the plaintiffs respectively, their ratable proportion of the fund in their hands belonging to Grivegnee. On an appeal by Anderson, Blair & Anderson from this decree, which was entered in the two suits, they being heard together, the court was of the opinion, that to the extent of the equitable assignment to Anderson, Blair & Anderson, they had priority of claim, and said decree, so far as it directed a
The next enquiry is, was this decree erroneous? The appellants in their petition, assign six errors in this decree. We cannot properly consider any of these errors, or express any opinion on the merits of these causes, because in my judgment when this decree of June 22, 1876, was rendered, two of these causes were in such a condition that the court could properly render no decree in them. In the case of John Callaghan’s adm’r. v. Daniel Circle, the sole defendant, Daniel Circle, had
Judge Fleming says, “It was urged however in argument, that consent cannot give a court jurisdiction ; but a party may undoubtedly, by consent, waive every advantage that might be taken by him of error in form of the proceedings in a court of competent jurisdiction, and rely altogether on the merits of his cause, which is purely what was done in the present case.” It is unnecessary for us to determine whether the majority of the court was right in its views. It is obvious that in that case, they proceeded on the ground that Murchie, the trustee, represented the town of Manchester, and that thus the town of Manchester was before the court when the decree was rendered, and though it might not be properly before the court, yet it was competent for the appellant to waive any objection to the form in which the town of Manchester was thus brought before the court, and that in that case the appellant had done so by several acts, and among others, by consenting that the cause might be heard. But in the cases before us, the widow and heirs of D. Circle were entirely absent in two of these causes, and there is no pretense that there was any kind of representation of them in these two causes, when the
I conclude therefore that' the court had no authority to enter up the decree of June 22, 1876, in the absence of all the defendants in the first and principal cause, and as the causes must be remanded to the circuit court to be matured for hearing, it is improper for me in advance of any legal decision of the cause by the circuit court, to express any opinion on its merits
It remains to consider what action this Court should take. The decree of June 22, 1876, is not simply erroneous, but it is absolutely void so far as it effects D. Circle’s heirs and widow, being rendered, when all these defendants in the principal and leading cause were not before the court in that cause. See Requa v. Holmes, 16 N. Y. 123, and same case, 29 N. Y. 338. Still even in such case, it is proper for this Court to reverse such a decree and not dismiss the appeal as an unnecessary proceeding to correct such error. See Monroe et al. v. Bartlett et al., 6 W. Va. 441; and Johnson v. Young, Carson & Bryant, 11 W. Va. 673.
The decree therefore of the circuit court of Green-brier county of date, June 22, 1876, must be reversed and annulled and the cause remanded to that court, with directions before proceeding to render any decree in said causes to have the two first named causes revived against
Decree Reversed.