33 W. Va. 60 | W. Va. | 1889
This cause was before this Court in the name of McCoy’s Executor v. McCoy’s Devisees and others in the year 1876, (9 W. Va. 443,) and at the August term of the court in that year was remanded to the Circuit Court of Pendleton county, .in order that proper parties might be made thereto, in order to have a proper hearing aud decision of the cause according to the rights of the several parties. After the mandate had been entered in said Circuit Court, and it was made apparent to said court, that the necessary parties had been properly convened, a decree was rendered in said cause on the. 26th day of April, 1880, directing a commissioner to ascertain and report to the court — -first, to whom the funds in said suit belonged; second, what the value of any interest is, owned by any of the defendants except William McCoy;
- When this cause was remanded to the Circuit Court of Pendleton county, in August, 1876, the decree of April 18; 1872, confirming the reports of commissioners, and the decree of April, 1872, designated in the printed record as the “final decree,” and which purported to construe the will of William McCoy, deceased, among other things, were reversed, so that the decrees of October 23, 1880, and April 26, 1880, entered in the cause after the same was remanded, are the only decrees complained of by petitioners; one of which directs a commissioner to ascertain and report to whom the- funds in the suit belonged, the value of any interest owned by any of the defendants except William McCoy, and directing also a settlement of the accounts of Isaac P. Boggs as receiver in said cause, and the other confirms the report of said commissioner, which report appears to have been so confirmed without exception.
The first error relied on by the petitioners for this appeal is the reference of the cause to a commissioner and the adjudication of the rights of the parties without requiring an amended hill to he filed, as mentioned by this Court in the decision of the case, to bring all the parties in interest before the Circuit Court. PTow, while it is true, the case was remanded, in order that proper parties might be made, said order wTas made under a misapprehension in regard to the manner, in which the order of publication against the absent-defendants had been executed, it notappearing affirmatively, that said order had been posted as required by law; but after said cause was remanded and came again into the Circuit
In the case of Neal v. Van Winkle, 24 W. Va. 401, it was held : “To give this Court jurisdiction in a cause involving-matters simply pecuniary, the record must show, not only that the party complaining has been prejudiced by the decree or judgment of the inferior court, but that the amount in controversy in this Court exceeds the value of $100.00 exclusive of costs;” and in the case of Rymer v. Hawkins, 18 W. Va. 309; it was held, that the matter of controversy in the suit, and upon which the decree was rendered, must not only be of the value of $100.00 exclusive of costs, but the controversy in relation to the matter of that value must be continued by the appeal to give the court of appeals jurisdiction. See, also, Railroad Co. v. Foreman, 24 W. Va. 662, where the same has been held.
It is true, that Benjamin McCoy, one of the appellants, has presented upon the trial of this appeal his affidavit, that the amount in controversy in this suit exclusive of interest and costs exceeds the sum of $100.00 but he states no facts, by which the correctness of the statement in his affidavit may be
Appeal Dismissed.