73 W. Va. 78 | W. Va. | 1913
J. F. McDonald, Charles Booth, Edward Feinler,. John B. Bose and J. L. McDonald, being the owners of all the capital stock of the McDonald Planing Mill .Company, brought this suit to wind up its affairs, alleging its insolvency. The corporation and its creditors were made parties defendant. On the 9th of December, 1909, the court appointed a receiver to take charge of its property and collect outstanding claims due it; and on the 13th of April, 1910, it referred the cause to a master commissioner, to ascertain and report its debts and their priorities and the amount of money in the hands of the receiver. The commissioner- listed debts, aggregating $17,545.47j and reported that there were no priorities among them, and found that there was in the receiver’s hands the sum of $9,683.52. The Ger-mania Half Dollar Savings Bank, one of the defendants, excepted to the report because the commissioner had reported its debt of $2,333.37, as a debt of the general class, and not as a lien upon the company’s property, as it claimed it was. The court heard the cause upon the report and exceptions thereto, on the 11th February, 1911, and sustained the bank’s exceptions, and decreed its debt as a lien of the second class, a debt of $225.00 in favor of the Wheeling Terminal Bailroad Company, as to which there is no controversy, having been ascertained by the court to be the first lien. From that decree a number of the creditors, whose debts were placed in the general class, have appealed, assigning as error the sustaining of said exceptions. The bank’s debt was secured by a deed of trust executed in 1903, upon the McDonald Planing Mill Company’s property, consisting of machinery and lumber then on its yards, which, in the nature of the company’s business, was constantly changing. The lumber constituted its largest asset. Following the case of Gilbert v. Peppers, 65 W. Va. 355, holding that a deed of trust upon a stock of merchandise kept for. sale, which allowed the grantor to retain possession and continue to sell and replenish the stock, was fraudulent as to creditors, the commissioner held that the deed of trust to secure the debt due the aforesaid bank was fraudulent and void, and reported the bank’s debt in the general class. But no question of fraud was raised
Some of the appellants complain because the court refused them right to file answers; and another, who was not a party to the bill, because he was denied the right to file his petition in the suit and be made a party. But the offer to file these pleadings was not made until five days after the decree appealed from was rendered. Defendants were in default, and seem to have offered no excuse therefor. They tendered no affidavits excusing their delay, as the statute requires in such case. Ch. 125, Sec. 53, Code; McLaughlin v. Sayers, 72 W. Va. 364, 78 S. E. 355. Moreover, the rejected answers are not in the record, and we do not know what they contained. The court may have rejected them because of improper, or insufficient matter. We must assume that they were properly rejected, for error will not be presumed. Eor the same reason we can not see that the court erred in rejecting the petitiop of Flint Irving & Stoner Company. The decree will be affirmed.
Affirmed.