5 W. Va. 63 | W. Va. | 1871
The first, secohd, and third errors assigned for reversing the decree are, in substance, the same: being objections to the bill for not making Whitely & McConkey parties, and also for improperly making McOonhey & Co. parties. For which reasons, it was insisted, the bill should liave been dismissed upon the demurrer taken to it. In the charging part of the bill, the firm of Whitely & McConkey is enumerated, among others, as one of the creditors of the late firm of John Highland & Co. It the prayer of the bill, however, the same creditors that are named in the charging part, are prayed to be made parties defendant, except that instead of Whitely & McConkey, they are described as McConkey & Co. In the first part of the final decree, they are styled McConkey & Co., and as one of the foreign creditors of the late firm of John Highland & Co. (all of whom waived process and consented to the hearing of the cause), and again in the latter part of the same decree, as Whitely & McConkey; and throughout the record they are indifferently designated as “ Whitely & McConkey,” “ McConkey & Co,” and “ Whitely, McConkey & Co.” It is quite apparent, therefore, that they are one and the same party, and consequently there was no error in not sustaining the demurrer on this account. And, moreover, it could not be error to the prejudice of the appellants, or either of them. The next objection urged is, that the court proceeded to final decree without having Philander S. Austin, the administrator, of John Highland, before it. As the final decree recites that .the cause was heard, by consent, as to the non-resident'defendants (who waived process), and process duly served on the resident defendants who .had not filed answers, I think it is conclusive of the question, even if it were competent for the appellants to make such
Decree Reversed.