Home/West Virginia Supreme Court/Rickard v. Schley

Rickard v. Schley

27 W. Va. 617, 1886 W. Va. LEXIS 44
CourtWest Virginia Supreme Court
DecidedFebruary 13, 1886
StatusPublished
Cited by14 cases

This text of 27 W. Va. 617 (Rickard v. Schley) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rickard v. Schley, 27 W. Va. 617, 1886 W. Va. LEXIS 44 (W. Va. 1886).

Opinions

Statement by

Green, Jud&e :

John L. Rickard and John F.Welshaus, late partners under the name style and firm of Rickard & Welshaus, M. S. Ken-[618]*618dal and Daniel T. Knode on behalf of themselves and all other lien-creditors of the defendant, John E. Schley, at July rules, 1881, filed their bill in chancery in the circuit court of Jefferson county against John E. Schley and twenty six other defendants. The bill alleged that the plaintiff Knode among others recovered in said court on November 29, 1872, in Glenn, &c. v. Blackford, &c. a decree against John E. Schley as general receiver of said court for $24.03 and also on April 27, 1876, in said cause and two others, named, $11.72, and that the plaintiff, Kendal, in said last decree recovered against him $67.06; and in the same decree many other persons recovered various sums, against him as such general receiver. Certified copies of so much of these decrees as show these orders in favor of these plaintiffs are filed as exhibits. The first is a decree, that John E. Schley, a general receiver of this court, do pay on January 1, 1873, to D. T. Knode $24.03. The second is a decree that John E. Schley, late receiver of this court, out of the funds in his hands pay to M. S. Kendal $67.06 and to David T. Knode $11.72. The last decree is dated April 27, 1876. The bill then states that Kickard & Welshaus on April 10, 1879, recovered against John E. Schley individually a judgment in said court for $285.45 with interest from March 25, 1879 till paid and $18.50 cost, on which judgment an execution issued and was returned “no property found,” and that the Jefferson Savings Bank recovered in said court two judgments, describing them, against said Schley and said Kickard & Welshaus, his surety, which the plaintiffs, Kickard & Welshaus, were compelled to pay for said Schley ; that said Schley is possessed of certain real estate in said county on the Kearneysville turnpike and within half a mile of Shepherdstown being a highly improved farm containing 356 acres, on which said judgments are liens. The bill then concludes thus :

“ In consideration whereof, forasmuch as your orators are remediless in the premises save by aid of a court of equity, they pray that the rents and profits of said real estate may be sequéstered and a receiver appointed for the same; that the value and annual rental value of the said real estate of the defendant John E. Schley, with the amount of liens thereon and their respective priorities, may be ascertained and that a [619]*619decree may be rendered for a sale of said real estate, or so much thereof as may be necessary to pay and satisfy said liens thereon, and for such further and general relief as may be consistent with equity and the case requires, and that they will ever pray, &c.”

It will be observed, that the relation of these twenty-six defendants other than Schley to the purposes and objects of this bill is not stated; and we can only guess at that relation by supposing that some of them are judgment-creditors of Schley and others deed of trust creditors and other’s trustees in deeds of trust given by Schley, as they are called trustees. But thisis of course a mere surmise, and their relations to the cause might be very different from this surmise. . '

This bill was demurred to by Schley; and on March 27, 1882, the demurrer was sustained by William II. Travers sitting as speeial judge. The ground, on which the demurrer was sustained, as stated in the decree sustaining it, was that there was a misjoinder of parties plaintiff, the bill showing that Kendal & Knode had only decrees against Schley as receiver or as late receiver, and these decrees, the court was of opinion, were not liens on the lands of Schley. Leave was given the plaintiffs to amend their bill. The bill was accordingly amended; and Kendal & Knode left out of the amended bill as plaintiffs, the only plaintiffs in it being Rickard & Welshaus ; but Schley and the same twenty-six others were made defendants. The amended bill alleged the same facts as the original bill omitting the statement about the decrees against Schley as receiver, but avoided an obvious defect in the original bill by showing the relation of each of these twenty-six defendants to the cause stating that they were judgment-creditors, or had liens on said tract of land by deeds of trust, or were trustees in these deeds of trust. This amended bill sets out in detail these various judgments and deeds of trust, and concludes by asking, “that the rents and profits of said real estate may be sequestered, and a receiver be appointed for that purpose; that the value and annual rental value of the said real estate of the defendant John E. Schley, and which is all the real estate said Schley owns or is possessed of in this county and State, with the amount and character of the liens thereon and their respective priorities, may be ascer[620]*620tained; and that a decree may be rendered for a sale of said real estate for the payment and satisfaction of your orators* said liens and the other liens thereon, and for such further and general relief as may be consistent with equity and the case requires.”

Another amended bill was filed simply giving the names of the members of a firm made parties-detendants by the bill and the names of the administrators of one of the defendants, who had died; and it asks that these parties may be made defendants. . Demurrers by Schley to these amended bills were overruled.

On May 29,1883, this cause was by a decree referred to Forrest W. Brown, a commissioner in chancery, with instructions to ascertain and report, first, the real estate of which the defendant John E. Schley is seized and possessed; second, the value and anniral rental value of said real estate ; third, to-audit all the liens on said real estate, stating their character and respective priorities. TJnder this decree a report was made by the commissioner which by a decree of November 29, 1884, was recommitted to him without the court’s talcing any action upon it and with instructions to execute the above decree. And on February 9,1885, the commissioner having-proceeded in all respects properly to execute the duty imposed on him returned his report. I give below the conclusion of this report adding to it simply the dates when the liens ot each of the lienors were docketed. These dates are taken from portions of the report, which I have not deemed it necessary to state.

[621]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Korczyk v. Solonka
42 S.E.2d 814 (West Virginia Supreme Court, 1947)
Miller v. Baer
172 S.E. 612 (West Virginia Supreme Court, 1934)
Boylan v. Hines
59 S.E. 503 (West Virginia Supreme Court, 1907)
United States Blowpipe Co. v. Spencer
56 S.E. 345 (West Virginia Supreme Court, 1907)
Crawford v. Fickey
23 S.E. 662 (West Virginia Supreme Court, 1895)
Gay v. Skeen
36 W. Va. 582 (West Virginia Supreme Court, 1892)
Fowler v. Lewis's Adm'r
14 S.E. 447 (West Virginia Supreme Court, 1892)
Shaffer v. Fetty
4 S.E. 278 (West Virginia Supreme Court, 1887)
Rohrbaugh v. Bennett
3 S.E. 593 (West Virginia Supreme Court, 1887)
McNutt v. Trogden
2 S.E. 328 (West Virginia Supreme Court, 1887)
Evans v. Spurgin
11 Gratt. 615 (Supreme Court of Virginia, 1854)
Commonwealth v. Adcock
8 Va. 661 (Supreme Court of Virginia, 1851)

Cite This Page — Counsel Stack

Bluebook (online)
27 W. Va. 617, 1886 W. Va. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rickard-v-schley-wva-1886.