Paxton v. Rucker

Moore, Judge, delivered the opinion of the Court: It appears from the decree appealed from, that this cause was “heard upon the rule heretofore awarded to Lyle [551] Paxton, the purchaser of lot number four, sold under decree of the court in this cause, against Wesley Pucker, the answer of said Pucker to the rule, and all the papers filed with the petition for rule and the said answer, upon the report of sale of the land sold in this cause, and the plat laying off the same into lots for sale, upon the depositions taken upon the rule, and the evidence of the witnesses adduced in open court, and was argued by counsel.” This cause has been retained by this Court for a long time without adjudication, because of the incomplete condition of the record. The Court has tried to have the case presented to it fully, and in furtherance of that object has heretofore directed the writ of certiorari that a full and complete record of the proceedings, had upon the rule by the court below, might be made out and presented, so as to enable us to see the true foundation of the decree. The return to that writ has brought up a number of loose and unauthenticated papers, that cannot be considered as a part of the record. It does, however, appear, that “the evidence of the toitnesses adduced in open court/’ was not taken and preserved in legal form; that what is now presented to us, in the loose papers, and asked to be considered as the evidence of those witnesses, is in fact merely the rough notes taken by a member of the bar, without authority, and not for the purpose of preserving the testimony of the witnesses; and they are not claimed to be full and complete, and in fact, show7 on their face defects and incompleteness, such as is usual to such notes when taken merely to assist the memory of an attorney. Under these circumstances, I do not think that this Court should assume that the court below erred, when the testimony that was had before that court has not been preserved, and is not now before this Court. The Appellate Court will uot assume these notes to be the evidence upon which the court below acted, when they are nowhere recognized or certified as such by the court below. If the parties desired to preserve the testimony of those witnesses, so as to have been considered [552] by the Appellate Court, they could have done so in either of the legal modes opened to them, but having failed to do so, they must take the consequence of their own negligence. Therefore, as all the evidence is not before us, which was adduced before the circuit court, I am of opinion that the decree should be affirmed, but without prejudice to the rights of the appellant to proceed in the premises as may be right and proper according to the rules and law governing such matters. It has been questioned whether this rule was permissible in this case. Rucker made a quasi demurrer to the rule. Looking to the affidavit which laid the foundation for the issuing the rule, it is plain that the court, upon the authorities cited by counsel for appellee, acted within its proper jurisdiction, and under the practice of courts of chancery in such cases, in awarding the rule. A court of equity always has jurisdiction to carry into effect its own decrees. Newman v. Chapman, 2 Rand. 93. Judge Green, in that case, says: “ The court of chancery is not functus officio, until the decree is , executed by the delivery oí possession,” p. 106. In the case of Commonwealth v. Ragsdale, 2 H. & M. 8, the court gave the practice as follows : “The usual course of the court has been to make a rule upon the person in possession, where he is not a party to the suit; and, unless he shows a paramount right in himself, to order the property to be delivered to the commissioners acting under the decree ; and, if necessary, to enforce such order by an attachment.” In that case Quarels was in possession of certain negroes, whom he acquired alter the mortgage was duly of record, and refused' to give them up to the commissioners,-to be sold according to the decree of the court. In the case of Trimble et al., v. Patton, trustee, 5 W. Va. 432, this Court followed the same principle, and held the practice to be the same where a person, not a party to the suit, refused to give up possession of land decreed to another. Whether Rucker did, or did not show a bona fide claim of paramount title in himself, we cannot, for the [553] reasons beiore assigned undertake to decide upon this appeal as presented to us. Decree affirmed, with costs and $30.00 damages. The Other Judges Concurred. Decree Affirmed.