169 S.E. 240 | W. Va. | 1933
This appeal was granted to a decree of the circuit court of Cabell County entered September 12, 1932, in a judgment lien creditor's suit, in which Hagen-Ratcliff Company were plaintiffs and Emma J. Grobe and others were defendants. The purpose of the suit was to enforce certain judgment liens of the plaintiff, and, as an incident to that relief, to set aside certain conveyances made by the defendant to land in Cabell County.
Process issued August 19, 1931, was served the same day and returned to September Rules, 1931. No bill of complaint was filed until July Rules, 1932. On September 12, 1932, a decree was entered filing the petition of Sehon-Stevenson Company praying to be made party plaintiff, granting that prayer, adjudicating claims, and ordering a sale of the property described in the bill of complaint. An appeal to this court was allowed from that decree on January 30, 1933. On January 31, 1933, the circuit court entered a decree vacating the decree of September 12, 1932, as having been improvidently awarded, making Luther Wood, Alex Wolfe, and L. A. Pollock, trustee, parties defendant, and remanding the cause to rules for process and to be matured as to the new parties. On February 15, 1933, the appeal was made effective by the giving of the appeal bond.
Hagen-Ratcliff Company and Sehon-Stevenson Company, appellees, now ask leave to confess error in the decree of September 12, 1932, to the extent only of permitting that decree to be reversed and the cause remanded for further proceedings in the circuit court of Cabell County, insisting that the effect of that decree was to re-instate the cause, which they concede stood dismissed for failure of the plaintiff to file its bill of complaint before the expiration of three rule days after the rules at which the process was returned executed. The appellant resists this motion and contends that the decree of September 12, 1932, is void because at that time, in consequence of the provisions of the statute just referred to, plaintiff had no pending cause in which a decree could be entered. They insist that plaintiff's bill be dismissed here. *594
It is conceded that as of September 12, 1932, this cause stood dismissed for failure of the plaintiff to file his bill of complaint seasonably under Code
The decree of the circuit court of Cabell County, entered in this cause on September 12, 1932, is reversed and held for naught and the plaintiff's bill is dismissed.
Reversed; bill dismissed.