The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1915-04-04

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in the estate of his mother dying
lntestate, although a part or all OF
her estate came by devils from ner
rather. the releasor's grandfather.
A grandfather, while the grand
chi!ds parent is still living, Will not
be permitted, by procuring such y
release from his grandchild, to inter
Tupt the law of descendants and dis
tl+ihutIons, and to cut OFF his grand
child's right 10 take BY Inheritance
his due proportion Of his parents csz
tate. a as
lIcIlMaine knight Il Cows. Fielder,
ct al. and kannNha Valley Bank
rs. Fielder, ct III.
kanawha county; reversed and re
lmanded. President Robinson.
Proceedings in a cause cannot bind
parties VINO have been merely named.
as defendants therein: but as to
whom the bill has not been matured
cess to answer the same or by APP.
pea:ance thereto.
a bill seeking TO review a cause
Tor errors apparent OH the record.
cannot reopen the case for general
rclearin:. The procedure brings
about an appeal for error. not a re-
opening Tor a continuation Of the
lease.
Upon a bill for review for errors
apparent on the record. the court
shbnld review the cause and in one
order or decree, like procedure on
appeal. adjudicate so as TO correct
.tti:. errors
This court may OF its own motion
reverse DEGREES which has teen en-
tered in the absence OF necessary
oarties
F'riniier ~. Lorama Railroad Co.
Ritchie county; Judgment reversed
ana ease ren.anded. Judge Miller.
Under rules applicable to new trials
the court may on motion Of the party.
injurionsly affected set aside de-
mnrrer to evidence joined in by the
demurrer and award him new trial
R'lt good ground for such action.
after verdict. is not shown By aft
adavit showing surprise at the evil
dencc Of the adversary party on the
Issues joined. and afTidavits OF other
witnesses whose evidence by proper
diligence might hayeS been obtained.
and whose evidence is substantially
cumulative of other testimony intro
duced on the trial. A party SO sur
lprised il lie would protect his inter
ests must al once move for a con-
tlnuance, suffer a non-suit. orf#take
some other steps 10 protect his inter
ests. and not take the chances of an
adverse verdict and thereafter resort
to motion for new tria as a means
Of correcting his mistake
Where on demurrer TO evidence and
voluntary joinder tehrein by the de-
murree the trial court, on motion OF
the demurrer, enormously permits
withdrawal of the rejoinder. and on
grounds Of surprise. and newly dis
covered evidence. errcneausly sets
aside the demalrel' TO the evidence
and awards the demurrer a new trial
on all issues. this court on reversal
of the judgment Will remand the case
to the circuit court for Judgment on
the demurrer to the evidence. and for
further proceedings to be had therein.
Lewis vs.. West Virginia Pulp and
Paper Company.
Pocahontas county; Judgment re-
yersed: verdict set aside: new trail
awarded. Judge PoffenharGer.
Ordinarily time u.s. not Of the es-
sence of a contract, unless made so
BY its terms, OF unless it $ an ele-5
nlent of a mere condition precedent.
An absolute remuneration or con-
tract by one Of the parties thereto
constitutes a breach thereof and also
relieves the other from performance
OF his promise or covenant.