Riggs v. Lockwood , 1877 W. Va. LEXIS 7 ( 1877 )

Johnson, Judge,

delivered the opinion of the Court:

It is objected here that the record does not show, that the bill was filed at rules, or that any rules were ever taken in the cause ; or that the bill was ever taken for confessed, either at rules, or declared to be taken for Syllabus 2. confessed in court; and that no answer was filed and no issue made in the cause; or that the defendant ever appeared in court, either in person or by counsel, in the cause. It is true that neither of the decrees entered therein show how the cause was matured for hearing. The better practice certainly is for the decree to show on its face, that the cause was regularly matured for hearing; but it is not error to enter a decree in the cause not showing this, if the cause was in fact matured for hearing. In Quarrier v. Carter’s Representatives, 4 H & M. 242; it Syllabus 1. was held, that it was not necessary to state in a decree in chancery, that all the preliminary steps toward maturing the cause for hearing were taken, it being intended, where the cause was set for hearing, that it was regularly done, unless the party attempting to impugn the decree show the contrary. Here the record does not show that the cause was set for hearing ; but it appears that the summons was issued returnable, to February rules 1871, was returned to said rules duly executed on the defendant; and at said rules, the bill was filed, and that the first order, which was the one referring the cause to a commissioner, was entered on the first day of May 1871; and it further appears that the defendant appeared before the commissioner, and there had his own deposition taken in the cause, and afterwards, by counsel, appeared in court and excepted to the commissioner’s report. In List v. Wheeling, 7 W. Va. 518; Haymond, President, in delivering the opinion of the Court, said : “The summons in the cause seems to have been executed, and so returned to the clerk’s office at March rules, when the bill was filed. From the record there might besóme question, as to whether this cause was so matured at its final hearing, as to authorize the final decree, if it were otherwise correct, or as to how it was heard; but as the parties seem to desire a decision of the cause upon its merits, I will consider it as though it was heard upon the bill and exhibits, the answer and exhibits therewith filed and replication thereto, bill taken for confessed as to all the defendants who did not answer, and by consent. This I think is authorized by the time at which the bill was filed, and the right of the court below, to correct the proceedings had at rules, in order to hear the same and make final decree therein.” It results from this, that in the absence of anything to the contrary appearing upon the record, it must be presumed that the cause was regularly matured for hearing when the decrees, or either of them, were entered; and that when the first decree was rendered, referring the cause to a commissioner, that the bill had been regularly taken for confessed as to the defendant, Jonathan H. Lockwood. If the bill had not then been confessed by the defendant, it would have been manifestly improper to have ordered the reference, for the uniform doctrine of courts of equity is,' that it is improper to order an account merely to afford a party an opportunity to establish the allegations of his bill. Lee County Justices v. Fulkerton, 21 Gratt. 182; Tilden v. Maslin, 5 W. Va. 377. It was proper for the court, in the decree referring the cause to a commissioner, to regard it as confessed by the defendant; that the contract was made, as alleged in the bill between the plaintiff and defendant, and that its terms were as therein stated, and to refer the cause as it did to a commissioner to “ascertain and report the amount paid by plaintiff on account of the purchase money of the house and lot in the bill mentioned.” The commissioner was not directed to report anything as to the making of the contract, or its terms, and it was improper for him to make such inquiry, and all that portion of the report may be regarded as surplusage. The commissioner reported that the purchase money with interest of the house and lot had all been paid by the plaintiff to the defendant, and he had been over paid $107.85, which with interest thereon up to the date of the decree amounted to $146.67, for which a decree was given in favor of the plaintiff. It is insisted by the counsel for appellant in argument, that it was improper to render the personal decree for money; because no such relief was prayed for in the bill. There was a prayer for general relief; and under the facts and circumstances disclosed in the bill, the decree was proper if justified by the proof under that prayer. Anderson v. DeSoer, 6 Gratt. 363; Hale v. Horne et al., 21 Gratt. 112; Ballow v. Hudson, 13 Gratt. 672. It is also argued that the bill is brought' on a lost instrument, and there should have been an affidavit of its loss. That is only required in those easses where the loss of the instrument or a contract is what gives the court jurisdiction, here the jurisdiction is clear: Hickman v. Painter, 11 W. Va. 386.

The defendant excepted to the item of taxes in commissioner’s report, amounting as the exception alleges to $80.43. The only item, referring to any taxes, or amount- ' ing to that sum, is as follows: “February 1863, Cr. cash $60.00; Tax bill of 1861-2 $20.43-$80.43.” It will be observed by reference to the commissioner’s report in the statement of the case, that that item is a charge against the plaintiff, and not a credit allowed him. The next exception is to the store account of $312.29. This item we think well warranted by the proof, indeed according to the defendant’s own testimony this same store' account was presented to him-, and he does not deny that it is correct. The exception as to the item for repairing the house was properly overruled, as the evidence was conflicting; and I think the evidence warranted the commissioner in his conclusion as to that item. The exception, as to the the $83.23, paid to Joseph Alexander, was also properly overruled; as the evidence, in my opinion, fully warrants that payment, as made pursuant to the request of the defendant. I think, the exceptions were all properly overruled, and the decree proper; it is therefore affirmed with costs and damages according to law; and this cause is remanded to the circuit court of Marshall county, with instructions to take proper steps, to secure the execution of the deed, which was decreed to be made, the time prescribed having elapsed for making the same.

Judges Green and Haymond concurred.

Decree Affirmed.