Hoffman v. Shields

4 W. Va. 490

• Court: West Virginia Supreme Court
• Decided: January 15, 1870
• Status: Published

Opinion

Maxwell, J.

The first ground assigned as error is, that Rightmire and Carder, two of the home defendants, were not served with process, and that the order of publication was not duly executed against the non resident defendants, at the time the decree of the 29th of May, 1865, was rendered. It is objected, however, that Rightmire and Carder were not necessary parties. That they are necessary parties is not an open question. Conway v. Odbert, 2 W. Va. Rep., 25. And being necessary parties, it was error to proceed to render the decree complained of without having them before the court.

It is also objected that the non residents made parties in the bill were not necessary parties, and therefore it was not necessary that an order of publication should be executed against them. This court has- heretofore held that, judgment creditors are necessary parties in proceedings to subject the lands upon whichthey have liens, to the payment of other judgment liens; »o Mi at this is a settled question so far as this court is concerned. Snider v. Brown and others, 3 W. Va. Rep., 143. The order of publication does not appear, from the record, to have been properly executed, and no decree should have been rendered.

The decree complained of will have to be reversed, with costs to the appellant, and the cause remanded for further proceedings.

Bereshire, P.,. concurred.

Decree reversed.