9 W. Va. 695 | W. Va. | 1876
Tin's causéis submitted to the Court upon appeal from,- and supersedeas to, the decrees rendered by the circuit court of Jefferson county, respectively, on June 13,1873; November 10, 1873, and April 30, 1874.
The appellant, Francis W. Drew, insists, that in the decree of June 13,1873, it was error to act upon the report of the commissioner, in the absence of the bill and answer.
That decree states: “This cause, in- which the original bill, and the answer of the defendant. F. W. Drew,
It dots not definitely appear from the record1, at what time the bill and answer were lost, but it appears from the decree of December 18, 1867, that the cause was then heard “upon the bill and exhibits filed, the answer of John T. Gibson and F. W. Drew, and replications thereto, process duly executed upon, or acknowledged by David Howell, Samuel Ridenour, administrator of Win.’ C. Worthington deceased, Humphrey Keyes, N. S. White, R. H. Lee and Martha C. Drew, and more- than two months having elapsed since the filing of the bill, and tbe service of process upon tbe said defendants, and they having, with exception of John T. Gibson and F. W. Drew, failed to appear and answer the bill, tbe same as to them, is taken for confessed.” In that decree, the^ Court referred the cause to a master commissioner, to ascertain the liens on the defendant’s real estate, priorities, &g., upon each parcel of said real estate; “the value and rental ot the land, together with all matters deemed pertinent by himself, or that any of tbe parties may require to have stated,” &c.
The decree, after stating, that, it “appearing from the
The decree of October 17th, 1868, states that the cause then came on to be heard “upon the papers previously read in the cause, and the report of master commissioner Fayman, returned to the Court, the eleventh day of August, 1868, and the exceptions filed thereto, and was argued by counsel.” That decree shows that the Court sustained the first exception to the report, for the want of legal notice, and recommitted the cause to commissioner Fayman, to take the account as ordered by the former decree.
Pursuant to the decree of recommittal, Fayman retook the account, November 25, 18<>8, and filed it in the Clerk’s office, December 14, 1868, “with the exceptions taken thereto.” There is nothing in the record to show that the bill and answer had been lost at the time of taking the account under the order of recommittal, but on the contrary, it is inferrable from the fifth exception to the report, and the report itself, that the bill was with the papers of the cause at that time.
It, seems to me that .this case is stronger than the case of Mayo’s exr. and als v. Carrington’s exr. and als. 19 Gratt. 74-109, &c., and upon the precedent thereby established. lain satisfied this Court would not be justified in holding that, in the decree of June 13, 1873, it was error to act upon the commissioner’s report in the absence of the bill and answer, especially as the decrees and reports then before the Court, embodied all that was material to support the decree; and, as the bill has been replaced since the rendition of that decree, and again answered by Drew, upon inspection of them, it is clear, no injustice was done the appellant by that decree, in consequence of the absence of the bill and answer.
It is urged that in the decree last named, it was error
The third assignment of errors purports to be of such as are apparent on the face of the report of commissioner Tayrnan. To that report, the appellant made several exceptions, which, as has been stated, the court overruled by the decree of June 13,1873, and confirmed the report..
It was urged, in argument, that, the Commissioner should have ascertained “the liens, and their priorities, upon each parcel of land, respectively,” as directed by the decree; and as he failed to do so, the second exception to the report should have been sustained by the court; and that the court erred in decreeing a sale, before each tract and parcel of land was severally charged with its distinct liens in order of their priorities.
It is generally true, as argued by the appellant, that the Commissioner should follow strictly the directions-contained in the order of reference, and if he is directed to settle the liens and their priorities on each parcel of
The petition for review, or rehearing, it is urged, alleged the discovery of new matter of such a character, that it tended to establish a complete discharge of sundry lai-ge debts which had been audited against the petitioner. The petition exhibited two documents in the hand writing of the sheriff, one a list of executions in his hands against the petitioner, and the other a list of slaves belonging to the petitioner, which the counsel for ■appellant claimed, in argument, were corrected by the affidavit of T. W. Potterfield, that the slaves were the same levied on by the sheriff, (Campbell,) and that the sheriff had admitted in Potterfield’s hearing, that he had refused to sell, or allow petitioner to sell, consequently, the appellant argues that, this was a satisfaction, unless
Outside of the -fact, that the record in this cause has shown gross negligence on the part of the appellant, in every stage of -the case, an -utter want of diligence -in attending to his interests, when the Court -had given to him every-opportunity, it seems to me he was not- entitled to a review or rehearing for the alleged discovery of new evidence, as -he failed to show the exercise of reasonable diligence to discover or procure the same, and upon the principles laid down in Walker et als. v. Commonwealth. 68 Gratt. 13, and the cases cited in the opinion of the Court, delivered by Moncure J., which I consider conclusive of the subject.
Bat it is not satisfactory to my mind, that the commissioner did right in allowing the claim in favor of Gibson. There was no evidence to warrant it. The statement of Craighill, clerk of the bank, unsworn to is not evidence; and even if it were, it does not show that the claim was right, and proper, but merely shows that a note of $500, had been placed in the hands of the bank’s attorney for suit. The Court should not have allowed that claim without proof of its existence, and to whom due.
And as the pleadings dispute the claim of IN’. S. White, alleged in his bill for the $1,500; the defendant stating in his answer that he has no knowledge of such claim, knows nothing of the character of it-, ando asks that full proof be required of the mode in which the said White has become the owner of the said claim, and the manner in which, as endorser, he discharged, if at all, his said liability as such endorser, the commissioner should have specifically acted on that claim as requested by the debtor, and ascertained and reported to the court, how said White became entitled to have the claim allowed him.
Cause Remanded.