Volume 9 — West Virginia Reports

Appeal by William L. Jackson, Thomas M. Wells and L. G. Muneey, merchants and partners, doing business under the firm name of Jackson, Wells & Co., from a final decree of the circuit court of Wood county, rendered on the fifteenth day of July, 1874, in a suit then pending in said court, wherein said Jackson,.

Supersedeas to a j udgment of the circuit court of Gil-mer county, rendered on the fourth day of June, 1868, in a cause therein pending, wherein Jesse Miller, suing for the use of Samuel Hough and Richard Hough, was plaintiff, and John Greenleaves, administrator of Philip D. Cox, defendant. The cause reaches this Court upon the petition of the plaintiff below and the said Houghs. The facts appear in the opinion of the Court.

Supersedeas to a judgment of the circuit court of Wood county, rendered on the thirtieth day of December, 1874, in a suit then pending in said court, wherein D. Smythe Steele was plaintiff, and W. W. Harkness, defendant. The supersedeas was granted on the petition of the defendant below. The other facts sufficiently appear in the opinion of the Court. The Hon. James M. Jackson, judge of said circuit court, presided at the trial below.

supersedeas to,, a decree of the circuit co.urt of Ritchie county, rendered on the twenty-firstday of October, 1875, in a. suit therein pending, wherein James McKinney, Jr., was complainant and 'William Kirk and David Kirk, partners in business as Kirk & Bro., respondents. The appeal \yas .granted o.n the petition of Kirk,& Bro., The .opinion of the Court, contains a sufficient statement of the case. .

Supersedeas to a judgment of the circuit court of Wood county, rendered on the twenty-third day of January, 1874, in a suit then pending in said court, between E. M. Williams, plaintiff, and The Baltimore and Ohio Railroad Company, defendant. The petition, upon which the supersedeas was granted, was presented by the defendant below. The declaration filed in the suit was as follows : “State op West Virginia: Wood County, to-wit: In the Circuit Court Thereof.

S. Cook, administrator of the estate of Walton Wait, deceased. The complainant below was George Dent, and the respondents, the said Cook, as administrator, as aforesaid, Robert Crichton and The Second National Bank of Parkersburg. The other facts are stated in the opinion of the Court. The Hon. James M. Jackson,.judge of said circuit court, presided at the hearing below.

An. appeal, by the respondent below, Joseph Shuman from two decrees, rendered-by tbe circuit court of Marion county, in a suit therein pending, between Louisa Shuman, complainant, against said respondent, and dated June 27, 1872, and April 24, 1873. The facts are stated in the opinion of the Court.

The complainant below, who is the appellant here, was Thomas J. Dorsey, and the respondents and appellees Henry C. Shepherd, Sarah McGill, wife of William Mc-Gill, and daughter of Jeremiah Shepherd, deceased, Mary Shepherd, Emma A. Shepherd, Olivia Shepherd and Bruce Shepherd, children and heirs-at-law of said Jeremiah Shepherd, Sarah Shepherd his widow, the Board of Supervisors of Marshall county, Joseph Hammond, L. T. Gray, sheriff of Marshall county, and Thomas G. ’…

Supersedeas to a judgment of the circuit court of' Ohio county, rendered on the twenty-eighth day of May; 1874, in a suit then pending in said court, between Conrad A. Gaus, plaintiff, and Benno Kammer, Robert. G. Barr and Peter Erb, defendants. The supersedeas was granted on the petition of Barr. The other facts and a sufficient statement of the testimony set forth in the bill of exceptions taken to the opinion oi the court below, are contained in the opinion of the Court.

J. Horn. The plaintiff below was The Second National Bank of Parkersburg, and the defendants T. If. Chancellor and said Horn. The judgment was render•ed on the twenty-ninth day of December, 1874. The case is stated in the opinion of the Court. The Hon. James M. Jackson, judge of said circuit •court, presided at the trial below,.

Poole and N. A. Poole, partners .in trade, doing business under the firm name of W. T. Poole & Co., were complainants, and George Rice, respondent. The appeal was taken by the respondent. The opinion of the Court contains a sufficient statement of the facts. The Hon. James M. Jackson, judge of the said court, presided at the hearing below.

The appeal was taken by the respondent. The case is fully stated in the opinion of the Court. The Hon. Thayer Melvin, judge of said court,presided at the hearing below.

Supersedeas to, and appeal from, a judgment of the circuit court of Preston county, rendered on April 15, 1874, granted on the defendants below. , The plaintiff below was William H. Bishoff and the defendants, Edgar M. Hartley, Isaac B. Cobun and Jacob Cupp.

C. Hall, sheriff of said county, and, as such, administrator of the estate of William H. Johnston, deceased, w7as complainant, and Harrison Mendenhall and George Rice, respondents. The appeal reached this Courtjon the petition of said Mendenhall. The opinion of the court contains a full statement of the case. The Hon. James M. Jackson, judge of said court, presided at the hearing below.

The complainants were C. H. Garden, Daniel Dona-van, Joseph Tierney, John L. Bugh, William M. Garden, and John Campbell, partners as C. H. Gardner & Co., and the respondents, Thomas McCormick, trustee of David F. Schwartz, and said Bódwing as administra-trix, as aforesaid. The facts are sufficiently stated in the opinion of the court. The Hon. Gibson S. Cranmer, judge of said court, presided at the hearing below.

Appeal by the respondents from a decree of the circuit court of Ohio county, rendered on the twenty-third day of January, 1875, in a suit therein pending, wherein Frank S. Knox and Archibald Knox, who sued by their next friend, R; B. Woods, were complainants, and Daniel C. List, and James P. Rogers, executors and trustees under the will of Martha Knox, deceased; and the Mount Wood Cemetery Company, respondents.

The appeal was taken, by John McGannon and Maria McGannon, his wife, two of the respondents. • The complainants were Oliver Linsey, sueing for himself, and the other creditors of-said John McGannon, who might choose to .make themselves -parties to the suit, and Joseph Clifford and the respondents, said Mc-Gannon and Maria, his wife, Thomas.

April ,30. 1874, in a suit then pending in said court, wherein William H. Douglass and James McKinney were.complainants, and The Town of Harrisvillé and Daniel S. Bush, -Sergeant of said Town, respondents. The appeal was taken by the complainants.. The facts sufficiently appear in the opinion, of Hay-mond, President. The Hon. James M. Jackson, judge of said court, presided at the hearing b.elow.

Supersedeas to a judgment of the municipal court of Wheeling&emdash;granted on the petition of the plaintiff below&emdash;rendered on the seventeenth day of November, 1875. The plaintiff was The Wheeling, Parkersburg and Cincinnati Transportation Company, and the defendant the City of Wheeling. All the material facts appear in the opinion of the eoui’f- The Hon. Gibson L. Cranmer, judge of said municipal court, presided at the trial below.

Supersedeas to a judgment of the circuit court of Harrison county, rendered July 23, 1874, in a cause therein pending, wherein Jacob Myers and John C. Myers were plaintiffs, and Eugenius Ford, defendant. The supersedeas was granted on the petition of Ford. The material facts will be found stated in the opinion of the Court. The Hoe. Charles S. Lewis, judge of said court, presided at the trial below.

Appeal, by the defendant below, from a judgment of the circuit court oí Marion county, rendered on the thirteenth day of December, 187], in a cause therein pending, wherein Abraham P. Brookover, administrator of Leonard Metz, deceased, was plaintiff, and Ezekiel C. Snodgrass, defendant. The other facts are fully stated in the opinion of the Court. The Hon. Thomas W. Harrison, judge of said circuit court, presided at the trial below.

The complainants were Levi B. Springer and others, whose names do not appear, in the printed record, and the respondents, Shepherd McIntyre and others, whose names do not appear in the printed record.

Supersedeas and appeal, granted on the petition of City of Wheeling, from a decree, of the circuit court of Ohio county, rendered on the nineteenth day of.

to, a decree of the circuit court of Ritchie county, rendered on the twenty-ninth day of December, 1873, dissolving an injunction in a suit then pending in said court; and, also, from a decree rendered on the first day of May, 1874, dismissing the bill in the same suit. The complainant below, and the appellant here, was Z. M. Pierpoint, and the respondent and appellee, The Town of Harrisville. The facts are fully set forth in the opinion of the Court.

The facts of the case are fully set forth in the opinion of this Court. The Hon. Gibson L. Cranmer, judge of said municipal court, presided at the trial below.®

Supersedeas to a judgment of the circuit court of Harrison county, rendered on the twenty-third day of July, 1874, in a suit then pending in said court between John R. Stout, administrator of George S. Stout, plaintiff, and Irwin T. Golden, J. R. Helmick, and T. B. For-dyce, defendants. The supersedeas was granted on the petition of the defendants below.

Supersedeas -to a judgment of the municipal court of Wheeling, granted on the petition of the defendant below, to a judgment of said court, rendered on'the twenty-third day of February, 1876, in- a suit therein pending, wherein Thomas McCall was plaintiff, and the Phoenix Mutual Life Insurance Company, defendant. The opinion of Haymond, President, contains a full statement of the case. The Hon. Gibson L. Cranmer, judge of said municipal court, presided at the trial below.

In this case, the appellants, John Noonan, Thomas McGraw, Thomas Flanagan, Henry Gerkin, Frederick Gerkin, Gilbert L. B. Fetterman, and Louis Heckmer, brought suit, in their own names, against the Board of Education of the town of Grafton, Taylor county, and. the sheriff of said county, to enjoin and restrain them, from collecting certain taxes for school purposes. ’ An injunction was granted, which was afterwards dissolved by decree of the circuit court of Taylor county.

<p>Chapter one hundred and thirty-five, section one, Code (1868) permits any one of the parties to a controversy, to appeal, or have a of error, or supersedeas in such cases as are designated by the ■statute, without prejudice to those who were not made party to the appeal, writ of error or supersedeas; and that, notwithstanding one defendant took an appeal, writ of error, or supersedeas, under the statute, and was deemed to have abandoned it, it does not militate the right of, or conclude either of the other defendants who were not party to the appellate proceedings, from prosecuting an appeal, writ of error, or supersedeas in the same matter, within the time prescribed by statute.</p>

On a writ of error to two judgments, of the circuit court of Kanawha county, rendered on the twelfth and thirteenth days of December, 1873, respéctively, in a suit tKen' pending in .said.court, in which William C. Blaine, was plaintiff, and the Chesapeake and Ohio Railroad Company, was defendant. The facts of the case are fully set forth in the opinion of the Court. Hon. Joseph Smith, Judge of said circuit court, presided at the trial below. .

Supersedeas to a judgment of tlie circuit court of Jefferson county, rendered on the 10th day of November, 1873, in a suit then pending in said court, in which Robert W. Baylor, was plaintiff, and the Baltimore and Ohio Railroad Company, was defendant, granted on the ■ petition of said defendant. The facts of the case appear in the opinion of the Court. Hon. John Blair Hoge, Judge of said circuit court, presided at the trial below.

Supersedeas to a judgment of the circuit court of Mineral county, rendered on the thirtieth day of October, 1872, in a cause therein then pending, in which William II. High, was appellee, and John T. Peerce, administrator of Henry Kelly, deceased, was appellant. The super-sedeas was granted on the petition of said Peerce, administrator, the plaintiff in error. The facts of the case are fully set forth in the opinion, of Haymond, President.

Samuel C-Ludington and William H. Dickson, two- of said defendants. ' ' • The facts of the case are fully set.forth 'in the opinion of this Court. Hon. J. M. McWhorter, judge of said circuit court-presided at the hearing below.

Writ of error to a judgment oí; the circuit court of Greenbrier county entered on the twenty-sixth day of •June, 1875, in the above entitled action in which. Alexander F. Mathews and Joseph Jarrett, administrators of James Jarrett, deceased, were plaintiffs, and Samuel C. Hudington and James M. Nickellwere defendants, granted Petition of said administrators. The haci;s of the case appear in the opinion of Green, Judge.

decr ee of the circuit court- of Grant county, rendered on the twentieth day of March, 1872, in a cause therein pending, wherein John W. Welton was plaintiff, and Jesse Hutton and W. H. Hutton ivere defendants. Appeal granted on petition of the appellants, who were defendants below. The facts of the case are fully set forth in the opinion of this Court. Hon. J. W. F. Allen, Judge of said circuit court, presided at the hearing below.

Writ of error to a judgment of the circuit court of Greenbrier county, entered on the twenty-sixth day of Juno, 1865, in an action therein, then, pending, in which Alexander F. Mathews and Joseph Jarrett, administrators of James Jarrett, deceased, were plaintiffs, and James M. JSTickell and Samuel C. Ludington were defendants. The facts of the case are fully shown in the opinion, of the Court. Hon. Homer A. Holt, judge of said circuit court presided at the hearing below.

Supersedeas to a judgment of the circuit court of the county of Pendleton, rendered on the sixteenth day of November, 1872, in a suit therein, then pending, in which Eli Simmons was plaintiff, and Jacob Trumbo was defendant, granted on the petition of said defendant. The facts of the case are set forth in the opinion of this Court: Hon. J. T. Hoke, Judge of said circuit court presided at the hearing below.

Supersedeas to a judgment of the circuit court of the county of Monongalia, rendered on the twenty-ninth day of March, 1875, in a suit therein then pending, in which the Merchants’ and Mechanics’ Bank of Wheeling was plaintiff, and James Evans, Benjamin M. Dorsey, and others, were defendants. The supersedeas was granted on the petition of said Janies Evans and B. M. Dorsey, plaintiffs in error. The facts of the case appear in '(the opinion of this Court.

Supersedeas to a judgment of the circuit court of Jefferson county, rendered on the twentieth of April, 1870, in a suit therein then pending, in which Esrom Slifer was plaintiff, and Samuel Howell, administrator of David Howell, deceased, was defendant. The writ was granted on the petition of said Samuel Howell, the plaintiff in error. The facts of the case are set forth in the opinion of the Court. Pión. E. B. Hall, Judge of said circuit court, presided at the trial below.

<p>Appeal from a decree of the circuit court of Jefferson •county, pronounced on the thirteenth day of April, 1874, in a cause therein pending, wherein John W. 'Gardner, John Urton, and Francis Gardner were plaintiffs, and George W. Johnston, William H. Travers, T. W. Porterfield, David Johnston, Thomas Brown, John Boland, Randolph Custer, William Rissler, Hezekiah Colbert, Solomon Fleming, David Henderson, Joseph Duncan, and William Shaffer were defendants.</p> <p>Appeal granted on the petition of said plaintiffs.</p> <p>The facts of the case are set forth in the' opinion of this Court.</p> <p>Hon. Joseph A. Chapline, Judge of said circuit cou-rt, presided at the hearing below.</p>

Supersedeas to a judgment of the circuit court of Jefferson county rendered on the twenty-fifth day of April,, 1872, in a cause therein ponding, in which Ruah Ann Snyder, administratrix of Simon P. Snyder, was plaintiff,, and said A. J. W. Snyder and Jacob Snyder were defendants, granted on the petition of said Jacob Snyder, plaintiff in error. The facts fully appear in the opinion of the Court. Hon. John Blair Hoge, judge of said circuit court presided at the trial below.

Harrison, deceased, was plaintiff, and the Farmers Bank of Virginia, and others, were defendants. Appeal granted on the petition of said Matthew Harrison, exo’r. The facts of the case fully appear in the opinion of this Court. Hon. Homer A. Holt, Judge of said circuit court, presided at the hearing below.

W. Boggs, administrator of James Boggs, deceased, was plaintiff, and John D. Johnson, administrator of Samuel Johnson, deceased, was defendant. The appeal was granted on the petition of said John I). Johnson, the appellant. The facts of the case are set forth in the opinion of this Court. Hon. John Blair Hoge, Judge of the third judicial circuit, presided at the trial below.

Supersedeas to a judgment of the circuit court of Jefferson county, rendered on the fifteenth of April, 1874, in a suit therein, pending, in which Henry Wustland, defendant in error, was plaintiff, and T. W. Potterfield and others, plaintiffs in error, were defendants. The facts of the case appear in the opinion of Moore, Judge. Hon. John Blair Hoge, Judge of said circuit court, presided at the trial below.

of Pendle-ton county, rendered at the April term, 1872, of said court, in a cause therein pending, in which William McCoy, executor of General William McCoy, deceased, wag plaintiff, and Benjamin McCoy, Wellington Holland, Elizabeth Holland, his wife, Wilson G. Beger, Daniel I. Beger, Augustus B. Miller, Artemas Miller, Leora Miller and Addison McCoy, administrator of Lucinda Rexroad, deceased, devisees of said General William McCoy, were defendants.

Supersedeas to a judgment of the circuit court of Ka-nawha county, entered on the thirteenth day of June, 1874, in a cause therein then pending, in which the ap-pellee, William G. Norvell was plaintiff, and the appellant, Henry S. Walker, was defendant, granted on petition of said defendant and appellant. The facts of the case appear in the opinion of this Court. Hon. Joseph Smith, Judge of said circuit court, presided at the trial below.

Writ of error to a judgment of the circuit court of Kanawha county rendered at the November term, 1875, of that court, in a case therein then pending, in which the State of West Virginia was plaintiff and Granville McDonald was defendant. The facts fully appear in the opinion of this Court. Hon: Joseph Smith, judge of said circuit court sided at the trial below. '

Gray and others dc-fen(iants. Appeal granted on the petition of said plain- The facts of the caso are fully set forth in the- opinion of this Court. Hon. Joseph Smith, Judge of said circuit court presided at the hearing below.

Supersedeas to two judgments of the circuit court of Cabell county, entered on the second and ninth days of June, 1874, respectively, in the above entitled cause, in which A. W. Handley was plaintiff and The Chesapeake and Ohio E. E. Company was defendant. The facts appear'in the opinion of the Court. Pión. Evermont Ward, judge of said circuit court presided at the trial below.

Appeal froin a decree of the circuit court of Kanawha' county, rendered at the May term thereof, 1874, in a sn^ therein pending, in which Joseph Shields and Nel-Mahan were plaintiffs, and Henry W. Reynolds was defendant. Appeal granted on the petition of said Reynolds, the appellant. The facts of the case are fully set forth in the opinion of the Court. ITon. Joseph Smith, Judge of said circuit court presided at the trial below.

Upon an appeal from the decree of the circuit court of Jefferson county, rendered on the first day of November, 1873, in a cause therein pending, in which Leonard Sad-ler’s administrator was complainant, and Francis W. Drew et al. were defendants, the said decree being rendered upon a motion made by Mitchell to set aside a sale of land made by the commissioners of said court. The appeal was granted on the petition of said Kable, the pui’chaser at the sale.

Supersedeas to a judgment of the circuit court of Ka-nawha county, rendered on the fifth day of June, 1875, in a case therein pending, in which L. G. Huling, Henry Brockerhoff, James H. Huling, Philip M. Gallaher, and Thomas E. Rogers, doing business under the name of Huling, Brockerhoff & Co., were plaintiffs, and Napoleon B. Cabell was defendant. The facts oi the case are fully stated in the opinion of tbe Court.

Brisben Walker, was complainant, and Lewis Summers, and others, defendants. The facts fully appear, in the opinion of the, Court. Hon. Joseph Smith, judge of said circuit court, presided at the hearing below.

G. Schilling, trustee and administrator of H. D. Chapman, deceased, was complainant, and James Ko bin so ills Administrator and others were defendants. Appeal granted •on the petition of Jordan McMillan, one of said defendants. The -facts are fully set forth in the opinion of the • Court. Hon. James M. Jackson, Judge of said circuit court ■presided at the hearing below.

Murdock, Jr., administrator ot John R. Murdock, deceased, was plaintiff, and George Ü.' Welles, and Mary A. Welles, were defendants; appeal granted on the petition of Mary A. Welles, appellant. The facts sufficiently appear in- the opinion of the Court. Hon. James M. Jackson, Judge of said circuit court, presided at the hearing below.

Writ of error to a judgment of the circuit court of Wood county, reudered in an action therein pending, the tenth day of .June, 1874, in which the State of West Virginia was plaintiff, and John Cain was defendant. The facts of the case are set forth in the opinion of the Court. Hon. James M. Jackson, Judge of said circuit court, presided at the trial below.

Supersedeas to a judgment of the circuit court of Ohio county rendered on the sixteenth day of May, 1873, in a cause therein then pending, in which Peter E. Zinn was plaintiff, and George Mendel and others defendants. The facts sufficiently appear in the opinion of the Court. Hon. Thayer Melvin, Judge of said circuit court, presided at the hearing below.

Supersedeas to an order of the judge of tlie circuit •court of Jefferson comity, entered on the nineteenth diy of November, 1874, in a habeas corpus case before him therein pending, in which Henry D. Rust was plaintiff, :and Mary E. Vanvaeter was defendant. The facts are set forth in the opinion of the Court. Hon. John Blair Hire, Judge of said circuit court, presided at the hearing below.

Supersedeas to a judgment of the circuit court of Green-brier county, rendered on the twelfth day of June, 1814, .in a cause therein pending, in which Joseph A. Huffman was plaintiff, and Wallace Robinson, administrator of John Marcus Alderson, deceased, was defendant. The facts are set forth in the opinion of the Court. Hon. Homer A. Holt, Judge of said circuit court, presided at the hearing below.

Supersedeas to a judgment of the circuit court of Wood county, rendered on the twentieth day of July, 1875, in an action of assumpsit therein then pending, in which the Little Kanawha Navigation Company was plaintiff, and George Eice was defendant. The facts appear in the opinion of the court. Hon. James M. Jackson, Judge of said circuit court, presided at the hearing below.

Writ óf error to a judgment of the circuit court of Mineral county, rendered at the May term, 1674, of said court, in a cause therein pending, in which the State of West Virginia was plaintiff, and Michael Gilmore, defendant. The facts appear in the opinion of the court. Hon. J. W. F. Allen, Judge of said circuit court, presided at the trial below.

Supersedeas to judgments of the circuit court of Ka-nawha county, entered on the twenty-fourth of November, 1873, the sixth of December, 1873, and the sixteenth of December, 1873, respectively, in a cause therein pending, in which the Chesapeake’ &' Ohio Railroad was plaintiff, and Robert Patton and others were defendants. The facts of the case sufficiently appear in the opinion ■of the court. . Hon. Joseph Smith, Judge of said circuit court, presiding at the trials below.

<p>1. Ail agent whose duty it was to pay the taxes of his principal, assessed in the name of the heirs of a party of whom the princi pal claimed he was the sole heir, failed to pay the taxes, and when, the land was sold for the non-payment of these taxes, purchased the same, professedly, for his principal, but tabes the deed to him. self therefor, and brings an action of ejectment against them, being in possession of the land under his principal, and recovers a judgment. — Hbld:</p> <p>A, court of equitj- will perpetually enjoin the enforcement of such judgment, though the plaintiffs fail to show that the principal was the heir of the person in whose name the land had been taxed.</p> <p>2. A suit in equity to enjoin the enforcement of such judgment brought immediately after its rendition, cannot be defeated by the plea of the statute of limitations, though the deed to such agent was made more than eighteen years before the institution of the suit.</p>

Whitham, the appellant, was complainant, and William Sayers, M. M. Hitcheox and T. J. Rawson were ■defendants. The facts are set forth in the opinion of the Court. Hon. C. J. Stuart, Judge of said circuit court, presided ■at the hearing beloiv.

Camden, and It. Snowden Andrews, were defendants. Appeal granted on the petition of said Camden, appellant. The facts are set forth in the opinion of the Court. Hon. C. S. Lewis, Judge of said circuit court, presided at the hearing belov.

187 4, respectively, in a cause therein pending, in which Nathan S. White, administrator of Leonard Sadler, deceased, was plaintiff, and Francis W. Drew, and others, were defendants. Appeal granted on the petition of said Drew, appellant. The facts appear in the opinion or the Court.

Supersedeas to a j udgment of the circuit court of Dodd-ridge county, rendered on the sixteenth of May, I860,, in a proceeding under chapter forty-two of the code, to condemn land for a public road, in which the supervisors, of Doddridge county were plaintiffs, and William Stone was defendant. The facts appear in the opinion of the Court. Hon. C. J. Stuart, Judge of said circuit court, presided at the trial below.