56 W. Va. 594 | W. Va. | 1904
George W. Trail, executor of Gharles H. Trail, filed his Mil in the eireuit court of Jefferson county against the divi-•.sees of Charles H. Trail and various ’creditors of Trail to settle the accounts of said executor, convene the creditors of Trail, and .ascertain their debts, and to subject the real and personal estate of Trail to the payment of his debts. The court referred the ■cause to a commissioner to settle with the executor, to report ■of what real estate Trail died seised and the debts due from him and their priorities. The commissioner made a report specifying the real estate of said decedent, and numerous debts against him, and settled the accounts of said executor, and reported that there was no personal estate to satisfy the debts. The cause was heard upon said report, and a decree was pronounced against ■the estate for the pajunent to divers persons of their divers debts, •fixing their amounts and declaring them all to be of the same •class as to the assets of said estate, and decreed that the real •estate reported by said reporter as the property of said decedent be sold by commissioners appointed for that purpose. This decree was pronounced 12th June, 1900. Eugene Baker was a defendant to the suit, the bill stating that he claimed a debt against Trail’s estate by reason of Trail having been a deputy of Baker, who was sheriff of Jefferson county, on account of tax bills for •collection, for which he was to account to Baker. The report of the commissioner did not report any debt in favor of Baker. Baker did not except to the report. On February 21, 1902, Baker filed a petition stating that Trail had been his deputy as sheriff and received tax books and collected taxes, and on that account he was indebted to Baker in a sum left blank in said petition, and it prayed that Baker’s debt might be audited and paid out of the estate. On the 2d June, 1902, he filed an amended petition ■setting up the same thing as to the indebtedness and claiming that it amounted to $2,880.25, and asking its payment out of the assets of said estate. On the same date he filed an answer setting up his claim. He filed no evidence of Trail’s indebtedness.
The sale commissioner proceeded from time to time to sell ■different pieces of real estate of said Trail, and made several
By the decree of 21st February, 1900, mentioned above as ordering a reference to convene creditors, the court directed the •sale of a certain piece of the realty in advance of any convention of creditors, and that property was sold and its proceeds ■consumed by application upon a debt due the Bank of Harper’s Ferry, which had a mortgage thereon, giving it a preference over 'other creditors as to the property. This decree was made because some of the parties assented to it. From all these decrees the administrator of Eugene Baker and James E. Watson and others joining him in said petition have appealed.
The objection to the decree selling the piece of property in advance of the ascertainment of the debt is based on the ground that a decedent’s land can not be sold until there has been such .■ascertainment. This is true; but it is useless to say more about that decree, for the reason that later decrees are barred, and it can not now be reversed, as appellants’ counsel freely admit, it going with them.
An assignment of error claims that it was error to confirm the report of the commissioner auditing the debts, which excluded the debt of Baker. The argument is that the court should have recommitted it to inquire into the debt of Baker, though the report was not excepted to by him, it appearing that there was •such a debt, since the bill alleged it. In the first place we can not affect that decree because it dates June 12, 1900, and the appeal was allowed September 10, 1903, and therefore the appeal is barred by the statute of limitation so far as that decree is ■concerned. It is argued, however, that an appeal from that decree is not barred, because it is not a final decree, and any error in it is to be remedied under an appeal from a later decree, as it would be carried into the subsequent decrees, which are within the appeal limit. It is very true that under the case of Stout v.
That case holds that a decree which sustains exceptions to a commissioner’s report and recommits it is not appealable. Of course not, because it decides nothing; but that is not to say that a commissioner’s report not excepted to and carried into an actual decree fixing the rights of the parties is not appealable. The opinion virtually says that it is a final decree. Appellant complains that the court did not recommit the report. Why should it have done so ? "Was not Baker a party ? Did he not fail to except to the report? He thereby waived any objection to it. Keck v. Allender, 37 W. Va. 201. It does not appear that he moved a recommital, and if he had done so the court ought not to have granted it, because he had had his day before the commissioner,, and had presented no evidence to sustain his claim. It did not appear that he had any debt. The commissioner would not have been warranted in reporting it, because there was no evidence to prove its existence or its amount. The bill did not do so. It simply stated that Trail had been Baker’s deputy and had tax bills for collection, and that Baker had presented his claim to him. This feature of the bill was only a suggestion that Baker and others claimed debts against the estate. The bill did not say a word about their justness or amount. How could a commissioner, without evidence, predicate a report of Baker’s debt upon that bill? The debt was peculiarly one un-liquidated.
Now, as to the action of the court, in denying Baker participation along with decreed creditors in the real assets of Trail. I think the decree is final upon Baker’s demand. His demand was specified in the bill. He was a party. He did not except. The decree ignored his demand and thus disallowed it; in effect
As to the exception to Moore’s forthwith report. That was only a report touching the dividends payable out of part of the proceeds of sale to the creditors under the former decree. That was no report of debts. That report was not subject to such •an exception. Exception should have been made to the first report, hut it was neglected. And even at that date there was not a particle of proof of Baker’s debt. It is complained that the commissioner failed to report on Baker’s claim as directed by the court and went on to decree to creditors dividends out <of the sale moneys. It is said the court should have recommitted the report and we are cited King v. Burdett, 44 W. Va. 561. The answer is, this was a report of dividends only. The rights of the parties had been decreed already, before Baker’s petition was filed. If the debts had not been decreed there might he some force in the suggestion that the report, I mean the forthwith report of dividends, should have been recommitted. Such was the ease in the case of King v. Burdett. That case is wholly without force in this instance. It is useless to tell ns that the Code, chapter 85, section 3, provides that the real estate of a decedent shall he assets for the payment of debts and all lawful demands against his estate in the order in which personal assets are to be applied, and that after preferred debts such assets go to all other debts ratably, or to cite us to section 3, chapter 86 making the real estate of a decedent liable for debts. Those provisions only declare the liability of real -estate and fix the order for payment of debts; but they do not change or apply to a decree which has already ascertained what debts shall be paid. Those statutes tell a court how debts that are reported shall be decreed; but they do not give ground to overthrow a decree already passed at the instance of a party who has failed to prove his case. We do not think section 36, chapter 87, Code, relates to the ease. It applies to ex parte settlements in the probate court, not to a creditors’ suit in a circuit court. I add that it was right to allow Baker to prove his debt before a commissioner, so as to have a decree against the •estate or a surplus, should one appear; but that did not say it
Affirmed.