Monroe v. Hurry

79 S.E. 830, 72 W. Va. 821, 1913 W. Va. LEXIS 136

• Court: West Virginia Supreme Court
• Decided: October 14, 1913
• Status: Published

Opinion

Millee, Judge:

The proposition contained in the first point of the syllabus we think fully supported by Blair v. Core, 20 W. Va. 265; Clarke v. Shanklin, 24 W. Va. 30; Crockett v. Sexton, 29 Grat. 46; Ronk v. Higginbotham, 54 W. Va. 137, 144; 8 Va. & W. Va. Enc. Dig. 700; Anthony v. Kasey, 83 Va. 338. The reason for this rule is obvious, and the principles sustaining it are fully covered in the cases cited, and need not be repeated.

The second point we think equally patent. While authority to sue the purchaser on his purchase money notes may be reasonably implied from authority to withdraw and collect the same, certainly no right to sue the former commissioner and the sureties on his bond can be deduced from that authority. Nor is there any general authority given in the .language of the decree referred to from which such authority can reasonably be implied. In support of the proposition covered by this point of the syllabus it is argued that the bond of a special commissioner is required and - given solely for the benefit of the parties entitled to the money distributable under the decree of the court, and that only such persons have right of action on such bonds. The authorities cited and relied on by counsel for this contention are Brooks v. Miller, 29 W. Va. 499; Lee v. Swepson, 76 Va. 173; Lloyd v. Erwin’s Admr., 29 Grat. 598; Hess v. Rader, 26 Grat. 746, 751. This proposition we need not and do not decide. State v. Abbott, 63 W. Va. 189, can hardly be regarded as opposed, for the question was not raised or distinctly decided in that case. It will be time enough for us to decide that question when it comes to ns in a case fairly presenting it.

The many other points presented .and argued in the briefs do not require consideration.

Because the bill improperly impleads Dawson and Fortney, sureties on the former commissioner’s bond, and the decree appealed from includes a money decree against them in favor of plaintiff, for the amount in which their principal was adjudged to be in default, that decree must be reversed, and as to them, the only parties appealing, the bill will be dismissed, but without prejudice.

Reversed.