McKinney v. Hammett

26 W. Va. 628, 1885 W. Va. LEXIS 99

• Court: West Virginia Supreme Court
• Decided: October 2, 1885
• Status: Published

Opinion

Snyder, Judge:

Suit in equity brought October 1880, in the circuit court of Pleasants county by James McKinney against George S. Hammett, Adam Flesher and others to ascertain the debts due from the estate of Solomon Clovis, deceased, and subject the real estate of which he died seized to the payment of the same, &c.

The cause was referred to a commissioner and a report of the debts and assets of the estate of said Clovis was made and returned by him which was confirmed by the court without objection or exception and the real estate directed to be sold. The sale was made and confirmed without exception by a decree entered March 12,1884. On the petition of the defendant, Adam Flesher, this appeal was allowed September 6,1884.

Heither the appellant nor any of the other defendants answered the plaintiff’s bill or otherwise made any defence in the court below, but as to each and all of them the cause was heard and all the decrees entered upon the bill taken for confessed.

This Court has repeatedly decided that a defendant, as to whom a decree has been entered upon a bill taken for eon-fessed, can not have such decree reviewed by this Court, until he shall have first applied to the court below to have such decree corrected in the manner prescribed by sec. 5 of ch. 134 of the Code. Baker v. W. M. & M. Co., 6 W. Va. 196; Dickinson v. Lewis, 7 Id. 673; Bock v. Bock, 24 Id. 586; Steenrod v. Railroad Co., 25 Id. 133.

The appeal in this cause must, therefore, be dismissed as having been improvidently awarded.

Dismissed.