90 W. Va. 98 | W. Va. | 1922
The appellant is Isaac C. Balphsnyder, one of the plaintiffs in the bill,, and the appellees are defendants W. W. Shoch, Trustee, and Mary Abigal Shoch Batten.
The object of the bill was to determine the respective rights of plaintiffs and defendants to the estate, real and personal, of the late Adolphus Armstrong, deceased, and of his deceased sister Louisa Ann Armstrong, his sole heir, who left a will by which she undertook to dispose of the estate which came to her from her deceased brother. After his death and after her death much litigation ensued between conflicting claimants and devisees in an endeavor to deter
The bill sought to have said estate divided and distributed on the basis of three several contracts between plaintiffs, but in which appellees had not joined, dated respectively May 31, 1911, December 26, 1914, and March 27, 1915, purporting to be compromises between them of their conflicting interests. The bill contains allegations intended to deny the said W. W. Shoch, Trustee, and Mary Abigal Shoch Batten all participation in the distribution of said estate.
The answers of the appellees denied all the material allegations of the bill designed to deprive them of their rights as distributees of said estate, and pleaded certain matters of estoppel against the appellant Isaac C. Ralphsnyder, to whom by said contracts the parties thereto had undertaken to apportion their interests and the interests of their codefend-ants, the heirs at law of Elias Fisher, deceased, or their assigns.
After their answers were so filed with general replications thereto by the plaintiffs including the said Isaac C. Ralph-snyder, all of the said plaintiffs except the said Ralphsnyder withdrew their general replications, and a day was fixed by the court when all pleadings and proofs were to be submitted and the issues presented, and briefs were to be filed by counsel; and the case was accordingly submitted on the day so fixed. 'Within the time so fixed for submission Ralphsnyder interposed no demurrer or special reply to the answers of ap-pellees, nor were his demurrer and answers tendered until after the cause had been for several months in the hands of the court for final decision.
That portion of the decree of October 17, 1919, now appealed from, adjudged that appellees were, for reasons shown by the record, entitled to two and one-half percent of the estate of the said Adolphus Armstrong and Louisa Ann Armstrong which was conceded to them by the contract of February 28, 1917, signed by or on behalf of all the plaintiffs except the said Isaac C. Ralphsnyder, and moreover decreed that by his acts and conduct pleaded Ralphsnyder was estop-
Before considering the case on its merits, we are first called upon to dispose of certain motions interposed by appellees. The first was to dismiss Ralphsnyder’s appeal, upon the ground that it was improvidently awarded. Application was made for the appeal on October 16, 1920, and the appeal was apparently allowed on the same, day, from a decree of October 17, 1919. This decree set aside one of October 7,. 1919, but the relief given appellees was in all respects the same as that given by the decree set -aside, and counsel for appellees contend that the last decree was simply a re-entry
The next motion is predicated on the alleged failure of appellant to comply strictly with section 5 of chapter 135 of the Code, relating to the transmission of the record in appeal cases. That section -does prescribe the method of procedure when an appeal is sought on the original papers in a cause. Petitioner is required to first file his petition and a .copy thereof in the office of the clerk of the court where the judgment, decree or order complained of was entered, and the clerk is required, as provided thereby, to arrange the papers and transmit them to this court or a judge thereof, but not until petitioner has deposited the money for a transcript or given bond as therein provided conditioned to pay for the transcript, etc., if the petition is granted. In this case petitioner first procured a transcript of the record, which he presented with his petition for appeal, and the appeal was allowed thereon, the appeal docketed, and writs were issued
We have left the disposition of the case on the several assignments of error. The first of these is that appellant was erroneously denied the right to file and have considered his demurrers and answers to the answers of appellees, with general replications thereto withdrawn by all the plaintiffs except the appellant. His general replications remained in the record and presented all issuable facts which he of right could interpose. His counsel concede this, unless the answers of appellees amounted to cross-bills with matter constituting claims for affirmative relief. We do not think these answers of appellees were cross-bills. While they deny the rights of Ralphsnyder pleaded in the bill and set up matters of estop-pel against him, they were only defensive to the bill. His entire claim to the Batten interests to which appellees were entitled was based wholly on the contracts between coplain-tiffs pleaded in the bill, and to which appellees were not parties nor represented by any one in authority. He pre- - sented no title to their interests; and it was their specific interests which the contracts pleaded undertook to concede to him. It is said these plaintiffs had the right to make this concession if they chose to do so. But how could they confer title they did not have, by such concession? The title of appellees came by consent or devise and assignment from Adolphus Armstrong and Louisa Ann Armstrong, of interests which Ralphsnyder had concededly sought to buy from them, but had failed to obtain. Their interests were indeed larger than the two and one-half percent decreed them, but by the contract of February 28, 1917, pleaded by ap-pellees in their answer, the same parties plaintiff to the bill, ■except Ralphsnyder, conceded two and one-half percent of the entire estate to them. The contracts relied on by appellant could not be construed as interpreted to take from ap-pellees their rights and give them to Ralphsnyder, but as ■conceding them to him if he should thereafter produce right .and title thereto,- which he never did nor pretended to have
We are therefore of opinion that Ralphsnyder was without right and was not prejudiced by the rejection of his demurrers and answers, and that the decree appealed from but gave appellees the interests to which they were entitled by inheritance and by contract with plaintiffs, and that it should be affirmed.
Affirmed.