CHARLESTON

#### Bank of Bramwell *v.*White & Taylor.

Submitted February 26, 1903.z

Decided April 25, 1903.

1. Cbeditor’s *Lien*— Error—Decree.

The Bank of Bramwell brought its suit in the circuit court of Mingo ■ County, for the benefit of itself and all other lien creditors who would come in and contribute to the expenses of the .suit against W., principal debtor, and T., his surety, for the purpose of subjecting the surety’s real estate to the payment of the liens thereon; the cause was referred to a commissioner to ascertain and report the real estate of said T. and the liens thereon, and on the filing of the commissioner’s report, on motion of the plaintiff, the cause was remanded to rules with leave to file an amended bill making new parties, to sue out process, etc. An amended bill was filed but it does not appear from the record that it was matured. The cause was brought on to be heard, among other things upon the demurrers of T. and W. to the original and amended bills of plaintiff and the defendants, T. and W., suggested the absence of the amended bill, and objected to a hearing of the cause until the same was restored; the amended bill not appearing in the record. *Held:*Error to enter final decree at that time. (p. 386).

Appeal from Circuit Court, Mingo County.

Bill by Bank of Bramwell against Ií. S. White and anothe" Decree for plaintiff, and defendants appeal.

*Reversed.*

*■*Siieepabd & G-oodykoontz, for appellants.

RuciceR & Anderson, for appellee.

MoWi-IORTBR, PRESIDENT :

The Bank of Bramwell suing for the benefit of itself and such other lien creditors as would come in and contribute tc the expenses o-f the suit, filed its bill in the circuit court of Mingo County against II. S. White and G. W. Taylor, at the June rules, 1897, alleging that it had recovered judgment before M. A. Hatfield, a justice> against the defendant, H. S. White, for $205.73, with interest from April 13, 1895; that on the 15th of April, 1895, an execution issued upon said judgment directed to J. E. Steele, a constable of Mingo County; *383that on the 29th of April, the execution was returned unsatisfied because of a stay bond filed by White nnder the statute, with G. W. Taylor his surety; that on the 31st of October, an execution was issued against White and his surety, Taylor, on his stay bond, directed to said Steele, constable, which execution it is alleged was returned January 25, 1896, unsatisfied, and that on the 25th of March, 1896, the third execution was issued on said judgment and stay bond and returned to the justice with the endorsement thereon by the constable “no property found.” It is further alleged that still another execution was issued on the-day of March, 1897, on said stay bond and judgment by A. M. Toler, justice, successor to M. S. Hatfield, directed to Elbert Riley, a constable, and by him returned with the endorsement thereon “no property found,”' as it was alleged would appear from a duly certified copy filed with the bill, marked exhibit Ho. 4, but no such exhibit appears in the record; that said judgment had never been paid; that subsequent to the rendering of said judgment and before the expiration of the stay claimed b3r the justice, defendant White, became insolvent and his property and effects were placed in the hands of a receiver appointed by the District Court of the United States, and that he was still so insolvent; that the said stay bond, under the statute had the effect of judgment as to said Taylor and was in effect a confession of judgment and was a lien upon Taylor’s real estate, and the suit was for the purpose of enforcing the lien against the real estate of Taylor, and plaintiff further alleged that on the 13th of April, 1895, I. T. Mann also recovered judgment before the same justice against said White, and said Taylor signed a stay bond with White upon said judgment and claiming that said Mann had a lien or liability upon the estate of said Taylor, which would be enforced in that court, and that said lien had never been paid, by White or Taylor or by any one for them, and mentioned other judgments against the same parties. Several of the exhibits, like exhibit Ho. 4, before referred to, purporting to be filed with said bill do not appear in the record, and that fact is set out as one cause of demurrer by the defendants, White and Taylor. The court sustained the demurrer to the bill and gave plaintiff leave to amend at the bar, “which was accordingly done,” when the said defendant again demurred to the bill as amended *384but the demurrer was overruled. There is but one bill filed in the cause and it does not appear in what particulars the bill was amended. An order was entered May 17, 1898, showing that certain new parties were necessary and remanding the cause to rules with leave to plaintiff to amend its bill, making necessary parties, to sue out process, etc. It can be gathered from the record that an amended bill was filed but it does not appear to be in tíre record, or that it was ever matured at rules or otherwise. On the 16th of September, 1898, defendant, Taylor, filed his answer to which there was general replication; he denied the material allegations of the bill and called for strict proof of the allegations, denied that the so-called judgment claimed by plaintiff against the defendant, White, had not' been paid off, by the defendants or either of them, or that anything remained due thereon. Respondent admitted that after the rendition of said so-called judgment, the validity of which he denied, and before the expiration of the so-called stay bond granted by Justice Hatfield, that the defendant, White, became insolvent and his property and effects were placed in the hands of a receiver, as stated, and that he was still insolvent, but denied that White’s estate would not he sufficient to pay the judg ments; but on the other hand, his estate was worth, more than $60,000.00, a large portion of which consisted of real estate in Mingo and Marshall Counties, and that if such judgment lien existed it was a lien upon the real estate of II. S. White and it was the duty of plaintiff to enforce the same against the real estate of White before proceeding against the real estate and property of respondent, and denied the judgmnt and stay bond of I. T. Mann, and avers that on the 31st of October, Mann caused to be issued against respondent and White, upon the said so-called judgment and so-called stay bond, the validity or existence of which respondent denied, in his favor, an execution which was placed in the hands of J. E. Steele, a constable, upon which the following endorsements were made by said Steele, constable:

> “Executed November the 32nd, 1895, by levying the said execution on 15,000 feet of poplar lumber, the property of H. S. White, in Mingo County, West Virginia; advertised for December the 4th, 1895.

> J. C. Steele, C. M. C.

> *385December the 4th, 1895.

> jSTo bidders; sale postponed until December the 20, 1895.

> December the 7th, 1895.

> Sale of the above property is enjoined.

> J. E. Steele, C. M. C.”

That on the 31st day of October, 1895, plaintiff caused to be awarded upon his pretended judgment and stay bond in its favor an execution, which was likewise placed in the hands of said Steele, constable, by virtue of which execution said constable levied on and took into his possession a large quantity of lumber on Beech Creek, located on the land of Elbert Kbn-nada, and the said lumber so levied upon was worth at a fair cash value more than $10,000.00, and which was the property of H. S. White, to which he had a valid and substantial title; that long after said executions went into the hands of said constable, to-wit, in the month of December, 1895, White’s property was placed in the hands of B. E. Meighen, receiver for said White appointed by the United States Circuit Court, for the District of West Virginia, in the equity cause of A. J. Sturgiss against H. S. White, et al.; that said executions by virtue of the levy aforesaid became valid, existing, abiding and continuing liens upon the said property levied upon and was in full satisfaction and payment of said executions and denied the charge of the plaintiff’s amended bill, to the effect that plaintiff’s claim and the claim of Mann, had been presented in said cause, and expressly denied that the plaintiff and said.Mann had followed the said property and assets so levied upon into the Federal Court, and there asserted their lien thereon; upon the other hand he charged that by the gross and wonton neglect and delay of said plaintiff and Mann, in failing to assert their execution liens from the time of the levy thereof, to-wit, in the month of April, 1895, until the month of December, 1895, and afterwards -into the Federal Court, was the sole cause of their failing to collect the amounts of the judgments mentioned, and that if they had so failed to collect their debts it was no fault of respondent; that the sales of said property under said executions in favor of said plaintiff and said Mann, were postponed from time to time by the constable in whose hands said executions were placed by the consent and direc*386tion of plaintiff and said Mann, all of which was without the consent or direction of defendant, whereby he was released and relieved of all liabilities by virtue of either of the stay bonds signed by him in favor of plaintiff and said Mann, and 'denied that it was true as alleged in the bill that the estate of • White was wasted and misappropriated by the management of said White and agent for said receiver, or that the ■proceeds arising from the sale of estate would not be sufficient to pay the expenses of said receivership and cost of suit; that if said property had been wasted and misappropriated it was no fault of the respondent and he should not be chargeable therewith, as the plaintiff and Mann took no steps whatever, to protect their rights iff the premises, against the said White, knowing that if respondent was liable at all for the payment of their judgments that he was only bound as surety therefor and that it was not true as alleged in. the bill that the plaintiff had no ■means of making its debts in any way, except out of the property, of respondent, and denied that White was perfectly insolvent or unreliable, and that the property delivercl by him to '■his receiver would not be sufficient to pay the plaintiff any part of its debt; and denied that said I. T. Mann, was the absolute *'bona, fide*owner of the judgment in the bill mentioned, ani named a list of twelve judgments reported by commissioner Hatfield in the- cause as liens against respondent, which had been fully paid off and satisfied, amounting in the aggregate to $986.34, and denied the existence of any judgment againsl him in favor, of Baldridge-Hogan Saw Compan}', Sandford Dempsey’s heirs, Francis Biddler & Company, and claims to have paid $75.00 on the lien reported in favor of the defend ■ ant, H. S¡ Waldron.

The defendant, H. S. White, filed his answer by leave of the court and to which the plaintiff replied generally, which answer simply adopts each and every part of the answer of Taylor as his answer. The cause was referred to commissioner *J.*M. Hatfield to ascertain and report the amouñt of real estate owned by defendant Taylor, its location, value, and his title thereto and his interest therein, tire lions thereon and whether the rents and profits would pay off the liens within a period of five years or less. The commissioner made his report, to which the defendants, White and Taylor filed exceptions. In view of *387the fact that the record clearly shows that the cause was pre-? maturely heard and final decree rendered before the cause was matured, it is not deemed necessary or proper to make further statement of the proceedings in the cause, except as to such final decree. On the 19th day of January, 1899, final decree was entered, in part as follows: “This day this cause came on again to bé heard upon the plaintiff’s original bill and exhibits therewith filed, upon the proceedings at rules and upon all the former orders and decrees heretofore entered herein,- upon the demurrers of G. W. Taylor, and H. S. White to the origi nal and amended bills of plaintiff, and the defendants,' White and Taylor, suggested the absence of the amended bill and objected to a hearing of this matter until the bill is restored, the answers of G. W. Taylor and II. S. White, to the bill of plaintiff, with general replication thereto, and upon the report of account made by commissioner J. M. Hatfield filed in ope.) court on the 18th day of May, 1898, and upon the depositions returned with said report, and upon the exceptions to 'said report filed by G. W. Taylor, and II. S. White, and the same being argued by connsel and the report having been seen ánd inspected by court, said exceptions are overruled and said report is hereby in all things approved and confirmed; and there upon the :death of the defendant J. A. Uighbert, was suggested and. admitted, but the plaintiff declines to revive his bill so far as the suggestion is concerned; and it appearing from said report that the defendant, G. W. Taylor, is indebted to the following named persons in the amount set opposite their respective names.” And proceeded to make a list of claims amounting in the aggregate to nearly $3,000.00, which are decreed to bo liens upon the several tracls of real estate belonging to said Taylor, which real estate is decreed to be sold to pay off said liens. From this decree the defendant, G. W. Taylor, appealed assigning numerous errors; but it is unnecessary to notice more than one. It will be seen that the defendant, Taylor, denied in his answer, allegations, alleged .in the answer, to be contained in .the amended bill and which are not in the bill which is set out in the record, which allegations are important in arriving at proper conclusions on the issues involved in the cause, which emphasizes the necessity of the presence of the *388amended bill, that a full, fair and just hearing may be had-of the cause. The defendants, Taylor and White, having suggested tire absence of the amended bill and objected to a hearing until it was restored, it was error in the court to hear the cause at the time. Therefore the decree is reversed and the cause remanded to be fully matured and proceeded in in accordance to the rules governing courts of equity.

*Reversed.*