Kreglo v. Fulk, 3 W. Va. 74

Kreglo v. Fulk

3 W. Va. 74 | W. Va. | 1868

Opinion on the Merits

On the merits of the case.

BrowN, President.

These two cases were heard together and involve the same questiÓL, which is whether in an action of ejectment by trustees appointed under the 9th section of chapter 77, Code of 1860, against the former trustees removed, to recover the trust property, the regularity and validity of that appointment can be drawn into question collaterally ? In the case of Venable vs. Coffman, 2 W. Va., 102, this question was considered and decided, and upon a reconsideration of the subject I see no cause to depart from that decision. It has been claimed that the 13th section of chapter 77, Code of 1849, p. 363, omitted inadvertently from the Code of 1860, affects this case. But that *85only provides that any member of a religious congregation may file a bill in chancery to compel a proper execution of the trust by the trustees. But that remedy existed without the statute, and exists yet under the general jurisdiction of a court of equity. It is merely cumulative and does not change the construction of the 9th section of chapter 77, Code of 1860.

The objections taken to the order appointing the plaintiffs in the ejectment must be overruled, and the judgments of the court below affirmed, with damages and costs to the defendants in error.

Judge Maxwell concurred.

Judgment affirmed.

Lead Opinion

Maxwell, J.

On the motion for a writ of restitution, Judge Maxwell said:

The defendants here recovered a judgment in the circuit court of Jefferson county, on the 26th day of April, 1867, against the plaintiffs here, for the possession of certain real estate, but the parties against whom the judgment was recovered', desiring to present a petition to this court for a supersedeas to the said judgment, obtained from the said circuit court an order suspending the execution of such judgment for thirty days. After the expiration of the thirty days, and before a supersedeas was allowed to the judgment, an execution was sued out and possession of the property delivered to the plaintiffs below. The cause is not now ready for final hearing, but the plaintiffs here, after having, first given the defendants here notice, move this court for a writ of restitution to be restored to the possession of the property. The supersedeas stays the proceedings in the state they were when it was allowed, until the-case is decided. If the judgment of the court below is reversed it will be proper to award a writ of restitution to restore the parties to the possession of the property of which they have been dispossessed by the execution; hut this court has no power to award the writ until the case is decided.

The motion must, therefore, be overruled.