6 W. Va. 36 | W. Va. | 1873
¥m. H. Hubbard, James H. Gardner and Ambrose Carlton, late merchants and partners composing the firm name of Gardner, Carlton & Co., obtained a judgment in the Circuit Court of Monroe county, on the 21st day of May, 1869, against the defendant, G. C. Landcraft, for the sum of $476,58, with interest from 20th of November, 1859, until paid, and costs of suit; the Judge of the Court under the provisions of an act of the Legislature of this State passed February 27th, 1867, entitled, “An act staying the collection of certain debts,” at the time of the rendition of said judgment, and at the end thereof, made an order in these words: “ It appearing that the Plaintiffs are residents of the State of Virginia, execution on this judgment is stayed until further order of the Court. Afterwards on the 16th day of May, 1870, the •Court made an order in the cause at law, setting aside the order, and directed execution, to issue upon the judgment, and afterwards on the 2nd day of June, 1870, a writ of fieri facias did issue upon the judgment. On the 4th day of January, 1871, the Plaintiffs, as survivors of of themselves, and "William H. Hubbard, deceased, late merchants and partners under the firm name and style of Gardner, Carlton & Co., commenced this suit on the equity side of the Circuit Court of the county of Monroe, against the Defendants, and on the first Monday in Feb
The summons in the cause was returnable to the rules held in the Clerk’s office on the first Monday in February, 1871, and on that day the summons was duly returned executed on all the Defendants. At February rules the Plaintiffs filed their bill, and took a decree nUi against the Defendants, and afterwards at rules, on motion of the Plaintiffs, their bill was taken for confessed, and the cause set down for hearing. At the commencement of the Court at which the decree was rendered the Plaintiffs were entitled to have the cause heard, upon the bill taken for confessed at rules. . At this term of the Court the Defendants appeared before the decree was rendered and obtained leave to file their answers, and did then file them, to which the Plaintiffs filed general replications. Up to the filing of the answers the Defendants were in default, and it was the right of the Plaintiffs to have the cause then heard, upon the bill, exhibits, answers, and replication thereto, unless the Defendants by proper affidavits showed -good cause to the Court for a continuance. But it does not appear that the Defendants, or any of them, asked for a continuance of the cause, or disclosed or offered to disclose, to the
It appears from the record in the case that a writ of fieri facias did issue upon the Plaintiff’s judgment, and it is charged in the bill that the execution so issued “ went into the hands of the proper officer, and was by him returned, wholly unsatisfied.” I understand this return as alleged, substantially to mean that, the officer could not and did not make the money upon the execution. This charge of the Plaintiffs contained in his bill, is not denied in any of the answers. Every material allegation of the bill not controverted by an answer shall for the purposes of the suit, be taken as true, and no proof thereof shall be required, 36 section of chapter 125 of Code of "West Virginia, page-604. The Defendant'] Landcraft, does not pretend in his answer,
The fourth assignment of error is, that the Court below erred “in not. allowing Haynes the whole of the Alexander debt.” This assignment was not insisted on in argument before the Court. But I have examined the record, and find thot the assignment is not well founded. The Court below in its decree allows Haynes the full amount of the Alexander debt, including interest, as may easily be ascertained from the record.
The fifth error assigned is, that the Court “allowed the Plaintiff more than he claims.” I have examined the record, and find this assignment also to be incorrect. The Court allowed the Plaintiffs, in the decree, their principal debt with its legal interest up to the date of the decree, and the costs at law, which, when aggregated, is not less than the amount fixed in the decree.