Hunter v. Robinson , 5 W. Va. 272 ( 1872 )

Berkshire, P.

Numerous objections are urged against the decree rendered in this case, none of which, it appears to me, can be sustained. The first is, that the court erred in not dismissing the bill (upon demurrer) for failing to make the personal representative of Daniel H. Stalnaker, deceased, a party; and also because it was not sworn to by the complainant. The object of the bill was to obtain a personal decree against Hunter and Ludington, the appellants, as the surviving obligors of the lost bonds executed' by them and the said Stalnaker to William Perkins, the appellee’s intestate. But as no such personal decree could have been rendered against Stalnaker’s personal representative, who was the appellee himself, if he had been brought before the court, it was not necessary to make him a party to this proceeding. The allegations of the bill, as to the loss of the bonds, are supported by the affidavit of William S. McChesney, who was tbe personal representative of said Perkins in Virginia, and from whose custody the bonds seem to have been lost, which was filed with and made a part of the bill, and was sufficient to satisfy the requirements of the law in such cases. The demurrer, therefore, was properly overruled. It is also objected that the court erred in not sustaining the appellant’s exception to the deposition of William S. McChes-ney. The exception endorsed is “because it was not taken in this cause pursuant to notice.” It appears that the deposition was taken at the time and place specified in the notice, which was served on the appellants, to be read as evidence on behalf of plaintiffs in the suit of William Robinson, administrator of William Perkins, against the appellants, then pending in the circuit court of Greenbrier county, West Virginia. The only defect or discrepancy is in the certificate of the officer who took the deposition, and consists in calling the administrator of Perkins, William instead of Wallace Robinson. But this slight mistake in the name of the complainant (who had sued in his representative character) could not have misled the defendants, and was therefore not sufficient exclude the deposition. A further objection urged was that the court erred in not recommitting the master’s report, for the purpose of allowing the appellants an opportunity of rebutting the testimony of said McChesney, taken after the report of the master was returned and filed.

It appears that the cause was finally heard on the report of the master, as well as the depositions taken after it was filed, without any objection by the appellants, and consequently it is too late to urge such objection here. It was further insisted that the court committed an error in disallowing the payments as credits reported by the master. But these alleged payments, I think, were effectually disproved by the testimony of said McChesney, and were, therefore, properly excluded in the final decree. And finally, it was objected that it was erroneous to decree against the appellants, without providing for their indemnification against the loss of the bonds, &c. The final decree recites that at the time it u:as rendered the bonds had been found, and were filed with the papers of the cause. There could, therefore, be no more necessity for such indemnity than there would have been if a judgment bad been obtained, and the bonds filed therewith, at law.

The decree must therefore be affirmed with costs and damages.

The other judges concurred.

Decree affirmed.