93 W. Va. 229 | W. Va. | 1923
' Plaintiff on bis appeal seeks to reverse a decree sustaining a demurrer to and dismissing its bill of review.
The record shows substantially the following facts:
On. August 31, 1920, the plaintiff conveyed to defendant Troll Coal Company, a corporation, certain coal lands in fee and certain mining leaseholds, houses and mining equipment, located on Helen’s Run in Marion County, for $220,000, of which $70,000 was paid in cash, and for the residue, amounting to $150,000,’ the defendant Troll Coal Company executed in favor of plaintiff, Francois Coal Company, its six notes of
Without .waiving any rights of defense, defendants, for the sole purpose of expediting the hearing on the bill of review, on June 19, 1922, appeared, waived process, and ■consented that the cause might be docketed, entered their .demurrer to the bill and moved to dismiss. The demurrer and motion to dismiss were sustained, but plaintiff, though .given leave to amend, declined to do so, and the cause was dismissed by the decree complained of, which was entered July 13, 1922.
• In support of its bill counsel urge two grounds(1) Evidence discovered since the entry of the decree of sale, and (2) errors apparent on the, face of the record.
A bill of review based on newly discovered evidence can only be filed by express leave of court. Nichols v. Nichols, 8 W. Va.
What are the facts shown? It knew when the assignment was made by its treasurer, that the note was being transferred ■ to Troll. In the bill of review it alleges that this assign- ■ ■ ment was made without authority; but when the original bill was filed, Troll was made a defendant and plaintiff there averred that the note had been assigned to him, without raising any question of the treasurer’s authority. Was the suit brought without plaintiff’s authority? It is nowhere so alleged. By the original bill it distinctly recognized Troll as transferee of the note and did not there in any manner question his right. It is now asserted that it did not know that by the assignment of the note a first lien on the property would be assigned with it. It can not be heard to say that it did not know the law. But Troll answered the original bill; ;averred the assignment to him, exhibited the note and assignment, and distinctly and unequivocally' asserted a first lien on the property. Plaintiff’s counsel then was fully informed of his claim. Notice to its counsel of record in that suit was notice to plaintiff. Jones v. Pilcher, 6 Munf. (Va.) 425; Greenlee v. McDowell, 39 N. C. 481. But notwithstanding this notice, plaintiff was content to
• But plaintiff would sustain its bill because of error apparent on the face of the decree. It failed to point out any in its bill of review, but attempts- to do so here by brief of its counsel. That renders the bill defective. Carter v. Allan,
Affirmed.