Houghton v. Mountain Lake Land Co.

Supreme Court of Virginia

Houghton v. Mountain Lake Land Co.

24 S.E. 920, 93 Va. 149, 1896 Va. LEXIS 60

DecidedApril 23, 1896

StatusPublished

This text of 24 S.E. 920 (Houghton v. Mountain Lake Land Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Houghton v. Mountain Lake Land Co., 24 S.E. 920, 93 Va. 149, 1896 Va. LEXIS 60 (Va. 1896).

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Opinion

Harrison, J.,

delivered the opinion of the court.

This is an appeal from a decree refusing to allow the appellants to file a petition asking that proceedings be suspended, and the confirmation of a sale of real estate be postponed until the matters of controversy set up by the petition were adjudicated in certain other pending suits.

The error assigned is the refusal of the court to allow the petition to be filed. The petition on its fa.ce made a prima facie case, and the proper practice under such circumstances is to permit the petition to be filed, and award a rule against the parties named as defendants therein requiring them to answer the petition, and, if necessary, to take the depositions of such witnesses as either party may desire, or, under some circumstances, to refer the case to a commissioner with directions to take the evidence and make a [152]*152report to the court, and then dispose of the case on its merits.

Inasmuch, however, as the parties to this controversy-have, without objection from either side, so far as the record shows, undertaken to prepare their case by procuring affidavits for and against the filing of said petition, and the court below has acted upon the record thus made, this court will not subject the parties to the cost and delay of sending the case back, but will dispose of it upon the record as now presented.

When the petition is read in connection with the affidavits and accompanying exhibits for and against its being filed, it is clear that the court did not err in rejecting said petition, and refusing to postpone the confirmation of the sale. In the state of the record it was not proper for the court to pass upon any of the matters of controversy raised by the petition, but merely upon the right of appellants to file the petition. In the light shed upon that question by the affidavits, and in order to properly guard the rights of appellants in this behalf, the decree ought to have provided that the rejection of the petition should be without prejudice to the right of appellants to further litigate the matters of controversy referred to in the petition, in the other suits pending for that purpose. In this respect said decree must be amended, and thus amended must be affirmed.

Amended and affirmed.

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Harrison, J.,

delivered the opinion of the court.

This is an appeal from a decree refusing to allow the appellants to file a petition asking that proceedings be suspended, and the confirmation of a sale of real estate be postponed until the matters of controversy set up by the petition were adjudicated in certain other pending suits.

The error assigned is the refusal of the court to allow the petition to be filed. The petition on its fa.ce made a prima facie case, and the proper practice under such circumstances is to permit the petition to be filed, and award a rule against the parties named as defendants therein requiring them to answer the petition, and, if necessary, to take the depositions of such witnesses as either party may desire, or, under some circumstances, to refer the case to a commissioner with directions to take the evidence and make a [152]*152report to the court, and then dispose of the case on its merits.

Inasmuch, however, as the parties to this controversy-have, without objection from either side, so far as the record shows, undertaken to prepare their case by procuring affidavits for and against the filing of said petition, and the court below has acted upon the record thus made, this court will not subject the parties to the cost and delay of sending the case back, but will dispose of it upon the record as now presented.

When the petition is read in connection with the affidavits and accompanying exhibits for and against its being filed, it is clear that the court did not err in rejecting said petition, and refusing to postpone the confirmation of the sale. In the state of the record it was not proper for the court to pass upon any of the matters of controversy raised by the petition, but merely upon the right of appellants to file the petition. In the light shed upon that question by the affidavits, and in order to properly guard the rights of appellants in this behalf, the decree ought to have provided that the rejection of the petition should be without prejudice to the right of appellants to further litigate the matters of controversy referred to in the petition, in the other suits pending for that purpose. In this respect said decree must be amended, and thus amended must be affirmed.

Amended and affirmed.

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Bluebook (online)

24 S.E. 920, 93 Va. 149, 1896 Va. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houghton-v-mountain-lake-land-co-va-1896.