76 W. Va. 120 | W. Va. | 1915
This suit was brought to enforce the lien of a judgment against the property of the Parkersburg & Ohio Valley Electric Railway Company. The original bill made the judgment debtor and Jack Hamilton parties defendant and was filed at November rules, 1909. At January rules, 1910, plaintiff filed an amended bill bringing in two additional parties, to-wit: the Union Trust & Deposit Company, a corporation, and John Schrader. The cause was later referred to a master commissioner who made a report of the liens. There were no exceptions to the report, and on the 13th day of ■ September, 1913, a decree was entered confirming it, fixing the priorities of the liens and decreeing a sale of the property which consisted of a line of electric railway and rights of way, about five miles in length in the county of Tyler, extending from Sistersville to the town of Friendly. There had been no appearance by any of the defendants. On the 15th day of
The first order made in the cause, referring it to a commissioner, was made on the 24th of June, 1910, and contains this recital, viz.: “This cause came on to be heard upon the bill of complaint and the amended' and supplemental bill filed therein and exhibits filed therewith; upon the summons returned duly executed on all the defendants. The defendants failing to appear, demurrer or plead the bill is taken'for confessed by all the defendants and submitted to the Court.” Commissioner K. S. Boreman, to whom the case was referred, retired from office before making report, and, on the 27th June, 1913, the court made another order referring it to O. C. Carter another commissioner. That order recites that the cause was heard upon the bill and supplemental bill regularly matured at rules, and taken for confessed and set for hearing. The final decree likewise recites that the cause was heard upon the “original bill and amended bill filed in this cause and process duly served thereon upon all of the defendants except Jack Hamilton; upon bills regularly taken for confessed and cause set for hearing;” and upon the order of reference and commissioner’s report. .The foregoing
But counsel for the railway company insist that the record does contain evidence of the fact that process was not served upon it. We do not think so. There is no copy of summons in the record, either upon the original or the amended bill, with return thereon showing service upon the aforesaid railway company; and the only record evidence of service upon it is the recital of the fact in the decrees, and the rules taken by the clerk at the November and the December rules, 1909. The record shows the following memoranda made by the clerk, viz.: “November Rules, 1909. Summons returned executed as to Parkersburg & Ohio Yalley Electric Railway Company, bill filed and decree nisi as to it,” and, “Dec’r. Rules 1909. Bill taken for confessed and cause set for hearing as to Parkersburg &, Ohio Yalley Electric Railway Company.” These rules were evidently taken on the original bill, because the amended bill was not filed until January rules, .1910. Counsel for appellant insist, however, because a copy of the summons to answer the original bill appears in the record, and shows that it was issued on the 14th of September, 1909, returnable to October rules, and contains no return by the officer, showing whether it was, or was not served; and because no order was made by the clerk, at the October rules to which the summons was returnable; and because there is a note appended to the summons, not made by the clerk who issued it, but by his successor in office, who certified the record
Plaintiff filed its amended bill at January rules, 1910, for the purpose of making the Union Trust & Deposit Company, a corporation, and John Schrader additional parties, and while the rules taken thereon do not show service on any of
It was not error to decree plaintiff’s judgment to be the first lien upon the railway company’s property. True, the trust deeds to secure bond issues were on record at the time plaintiff recovered its judgment, but the trust deeds were not alone sufficient to create liens. There had to be an issue and sale of bonds thereunder; and there was no evidence before the commissioner that any bonds had been issued. Moreover the assignment, if it were error, would not prejudice appellant.
The fact that the suit was pending from June, 1910, until June, 1913, without any order being ■ made or proceeding taken in the cause, does not show abandonment. Abandonment depends upon intention; and failure to proceed in a. pending cause for three years does not prove intention to abandon. Garrett v. Oil Co., 66 W. Va. 587; Smith v. Root, Id. 633. Section 12, chapter 114, serial section 4615, Code 1913, continues a cause that is upon the docket of the court, without the entry of an order of continuance. “A failure for fourteen years to make any entry of a cause at all or to make any entry but a continuance is no discontinuance of the cause, if. the court has made no order dismissing the cause for want of prosecution, as provided by sec. S, of ch. 127 of the Code.” Buster v. Holland; 27 W. Va. 510. See also Thommason v. Simmons, 57 W. Va. 576, and Gillespie v. Bailey, 12 W. Va. 70.
The suit brought bjr Henry M. Jackson against appellant and others, in the United States District Court for the Northern District of West Virginia, did not oust the state court of jurisdiction. The suit in the state court had been pending for nearly two years when that suit was brought; and the
“The rule is well settled, where two suits are pending between the same parties,— the one in the state and the other in the federal court, — the object of both suits being to secure the same relief, where the relief sought is the enforcement of a lien against specific property, to administer trusts, or liquidate insolvent estates; and in all other suits of a similar nature, where in the progress of the litigation the court may be compelled to assume the possession and control of specific personal or real property, the court which first acquires jurisdiction by the issue and service of process must be allowed to proceed with the hearing of the case to final judgment or decree, without interference on the part of the other court wherein the suit is pending.” Hughes v. Green, 84 Fed. Rep., at page 835.
“This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between courts whose jurisdiction embraces the same subjects and persons.” Farmers’ Loan &c. Co. v. Lake St. Rd. Co., 177 U. S. at page 61. The rule, in eases like the present one, is too well settled to admit of any doubt, and no further citation of authorities is necessary. Mr. Jackson brought his suit in the federal court, as a holder of mortgage bonds, to subject the railway company’s property to the lien thereof. This suit had already been brought in the state court for the purpose of enforcing plaintiff’s judgment lien against the same property in the
Finding no error the decree will be affirmed.
Affirmed.