8 W. Va. 462 | W. Va. | 1875
Simon Frank, Daniel Bloom and Leon Hass, partners in business under the firm name of S. Frank & Co., filed their bill of injunction in the circuit court of Wirt •county, on the- day of January, 1874, against Edward Brunnemann, surviving obligor of himself and August Behrens, and J. W. Burson and Andrew Maze.
The plaintiffs aver in their bill that they are the owners of a tract of land situate on the Little Kanawha river, in Wirt count)1, West Virginia, known as the Fairfax farm, containing five hundred acres; that the legal title to the land is in Solomon Sterne, who holds the same for himself and the other plaintiffs; that about one hundred acres of the land is improved and suitable for farming purposes, and the balance is wood land, con
S. FRANK & Co. [seal.]
SiMon Frank. '[seal.]
E. W. Brunnemann. [seal.]
August Behrens. [seal].
Sealed and delivered in the presence of M. A. Kcr-shudt.”
Plaintiffs, after setting out the contract, in their bill, further say, that the said Brunneman and Behrens, in pursuance of said employment and contract, sometime in the spring of 1870, went upon the land and took possession thereof, and remained thereon until in the fall of 1871, when the said Behrens died intestate, and soon thereafter his family left this State, and no person ever -qualified as his representative in this State; that he owned no property at the time of his decease known to the plaintiffs; that his surviving obligor, E. W. Brunne-mann, remained in possession of the land and is yet in possession thereof under said contract. And plaintiffs charge that said Brunnemann and Behrens did not, nor have they performed said contract during the lifetime of ■said Behrens, nor has said Brunnemann performed said ■contract since the death of said Behrens, but has wholly failed to cultivate said farm and keep the same in repair, and they have failed to cut and market timber off of said wood land, and have wholly failed to devote their entire time and attention to said business, and to keep full and accurate accounts of the products of the said farm and timber, and sale thereof, and to report the same on the first day of each and every month, as required by .said contract and to pay the taxes on the land, and to take care of the timber thereon, and the saplings growing thereon; that they (plaintiffs) have on their part faith
Plaintiffs also aver that they have tried to get said Brunnemann to remove from said land and give up the premises, but he refuses to do so, and continues on the land ; that he has wholly failed to pay the taxes on the land for the years 1872 and 1873, which amount to $205.94, and that by his failure to perform said contract,
Plaintiffs, also aver that said Brunnemann has broken his said contract — has paid no rent for said property, nor any compensation for the timber he has taken, and but a small amount of the taxes, and has converted to his own use the money furnished him by the plaintiffs to carry on the said business, and that owing to his insolvency, the plaintiffs are without adequate remedy at law.
Plaintiffs pray that the said Brunnemann, Maze and Burson be made defendants to the bill and that each of them be required, to answer the same and that they be perpetually restrained and enjoined from removing timber, or other property, from the said premises, and from
An injunction was allowed upon this bill by the judge ■of the circuit court in vacation.
On the 7th day of May, 1874, the defendants appeared and filed a demurrer to plaintiff s’ bill.
And afterwards on the 8th day of May, 1874, the circuit court made a decree in the cause in these words, viz: ■“This day the defendant Brunnemann tendered here in court his answer to complainants5 bill, to which the complainants file written exceptions, endorsed thereon and moved the court to dissolve the injunction heretofore awarded in this cause: whereupon the matter arising upon said exceptions, being submitted to the court, said exceptions are overruled: whereupon the complainants asked the court to grant them a continuance in order to file a special replication to defendant’s answer, which is also overruled. And the said cause coming on to be heard on the bill and the demurrer filed thereto, and the 'motion to dissolve the said injunction, and the answer of the said defendant, on consideration whereof the Court is of opinion that said demurrer is well taken, and therefore sustains the same. It is therefore adjudged, ordered and decreed that said injunction be dissolved and said bill .dismissed, and that the defendant Brunnemann recover of the complainants his costs about his defence in this behalf expended.”
The personal representative of August Behrens should be made a party to the case. The personal representative is not made a party, however, but I think the bill shows sufficient excuse for that omission for the time being — the excuse is that there is no personal representative, as yet; although the bill alleges that Behrens left no real or'personal estate within this State, that fact docs not dispense with the necessity of there being such personal representative, and his being made a party to this suit. But, under the circumstances, it was not indispensibly necessary that the personal representative should be made a party at the commencement of the proceedings in this case. In such case, before sustaining a demurrer to the bill, and dissolving the injunction and dismissing the bill for that cause simply, a reasonable time, at least, should have been allowed the plaintiffs to procure the appointment of such personal representative, and bring him before the court by amendment and process. Otherwise, in many cases, injunctions could not be applied for until the wrong and injury was done.
For the foregoing reasons, I am of opinion that the circuit court erred in its said final decree.
The final decree oi the circuit court of Wirt county, rendered on the 8th day of May, 1874, must be reversed, with costs to the appellants against the appellees: And this Court, proceeding to render such decree in the cause as the court below should have rendered, it is adjudged, ordered and decreed that this cause be remanded to the said circuit court of the county of Wirt, with leave to the plaintiffs to file a proper replication to the answer of the defendant, Brunneman, filed in this cause, if they shall ask so to do, within such time as the said circuit court may deem reasonable; and also with leave to file an amended bill making the personal representative of August Behrens a party defendant to this cause, and for such other and further pleadings therein there to be had as may be in accordance with the principles and rules governing courts of equity.
Decree Reversed and Cause Remanded.