47 W. Va. 153 | W. Va. | 1899
E. C. Goff, who sued on behalf of himself and all other lien creditors of John A. McBee, filed his bill in equity in the circuit court of Ritchie County on the first Monday in January, 1897, agaiust John A. McBee and others. On the 27th of February, 1897, the cause was heard upon the bill, the answer of the guardian ad litem, with'general replication thereto, and upon the demurrer of McBee to said bill, in which the plaintiff joined, which demurrer was overruled, and leave was given said defendant McBee to file his answer therein within thirty days from the date of the decree. On the same day the cause was referred to a commissioner to ascertain the real estate owned by the defendr ant;- the character of same; what interest or estate he has
This case is in many respects similar to the case of Neely v. Jones, 16 W. Va. 626, in which it is held (point 7 of the syllabus) that: “If the court overrules a demurrer to a bill, and gives the defendant a certain time in which to answer the bill, it cannot properly order a reference of the cause to a commissioner to ascertain the amount of the plaintiff’s demand till the time has elapsed which was given the defendant to answer; nor can it then order such reference, if the answer is filed, and denies all the facts on.which the plaintiff’s claim is based. If such answer be filed, no such reference can properly be made till the plaintiff, by evidence, has proven that he has a demand against the defendant.” In the case at-bar the reference to a commissioner was made in the same decree that overruled the’ demurrer and gave the defendant thirty days in which to answer. The defendant in'his answer denied every material allegation contained in the bill, and yet on the same 'day the answer was filed the court directed a sale of the land. Under the ruling of this court in the case of Neely
Reversed.