
    *Jones v. Janes.
    March, 1835,
    Richmond.
    (Absent Brooke, J.)
    Chancery Practice — Waiver ot Irregularity — Case at Bar. — A bill in equity is filed against one defendant, who answers denying the allegation of fact on which the bill claims relief; no replication is put in to the answer, and there is no award of commission to take depositions: but commissions are in fact issued, and depositions taken, some under such commissions, and some by consent; and the cause is set for hearing; then, on the application of another person, he is admitted defendant, on condition that the cause should not thereby be delayed, and he puts in an answer, relying on the same state of facts relied on in the answer of the first defendant; Held, the condition that the cause should not be delayed, was a waiver by the new defendant of the necessity of a replication to the answers, of a regular award of commissions, and of the taking the depositions over again; hes-itante Tucker, P.
    Same — Caption of Order No Part of Record. — The court orders an issue to try the controverted question of fact, but in the caption to that order, in the order book, the name of the new defendant is not mentioned: Held immaterial, since it appeared by the record that he was a party, and the caption to the orders is not a necessary part of the record.
    This was a foreign attachment in chancery, brought by Janes against Gall his absent debtor, in the county court of Pen-dleton. Janes alleged in his bill, that Gall having become indebted to him, by notes and bonds, in several sums, exceeding 200 dollars with interest, had departed from the commonwéalth ; that1 one Wilright having recovered a judgment against one Hoover, transferred the same to Gall for valuable consideration that an execution sued out on that judgment in Wilright’s name, was then in the hands of the sheriff of Pendle-ton ; and though it did not appear by the execution itself that it was for Gall’s benefit, it was so in fact. The bill, therefore, made Gall, the absent debtor of the plaintiff, Wilright, and the sheriff of Pendle-ton, parties *defendants; and prayed, that the sheriff might be enjoined from paying the proceeds of the execution to Wilright or his order; and that the same, as being the property of Gall, the absent debtor, might be attached in the hands of the sheriff as garnishee, and applied to the payment of the debt due from Gall to the plaintiff.
    Wilright, in his answer, stated, that having recovered the judgment against Hoover for 100 dollars, he agreed to lend the amount thereof to Gall, and therefore gave him an order on the sheriff for the proceeds of the execution when it should be levied, and an instrument of writing which was intended to transfer the same to him as a loan; that Gall, shortly afterwards, became insolvent, and absconded; that Gall never paid any consideration whatever for the transfer, and that, therefore, the proceeds of the execution were still, in equity, his (Wilright’s) own property.
    The answers of the sheriff of Pendleton, and of the administrator of Gall (who died after the bill was filed), disclaimed all knowledge on the subject.
    Without any replication being put in to the answers, or any award of commissions to take depositions, commissions were in fact issued, under which depositions were taken, and other depositions were taken by consent: whereby it was proved, that Wil-right had transferred his judgment and execution against Hoover to Gall, absolutely, and for valuable consideration. And these depositions being filed, the cause was set for hearing.
    In this state of the proceedings, the county court, it the instance of Jones made an order, directing that he should be made a defendant to the suit, but that the hearing should not be delayed thereby.
    Jones, thereupon, put in an answer to the bill, in which he alleged, that Wilright had transferred his judgment and execution against Hoover to him, Jones, *for valuable consideration ; and though he distinctly admitted, that, prior to this transfer under which he claimed, Gall had presented an order from Wilright to him Jones, then acting as deputy for Cunningham sheriff of Pendleton, yet, he said, Wilright shortly after countermanded that order, declaring that he had only agreed to lend the proceeds to the judgment and execution to Gall, who had paid no consideration, and given no security to refund the money, and had absconded; and that, therefore, the proceeds of the execution were still subject to Wilright’s disposal.
    The cause was afterwards transferred, by consent of the parties, to the superiour court of chancery of Staunton ; and upon a hearing there, upon the bill, answers, exhibits and depositions, the chancellor directed an issue to be tried in the circuit court of Pendleton, to ascertain, whether Wilright had made an absolute sale and transfer of his claim against Hoover, or any part thereof, to Gall, and whether Gall had paid Wilright value for the claim, or any part thereof, and if for part only, for how much? But, in the caption to this order of the court of chancery, Jones’s name was not mentioned as one of the defendants.
    The issue was tried in the circuit court of Pendleton; and the jury found, that Wil-right had made an absolute sale and transfer of the whole of his claim against Hoover to Gall, and that Gall had paid Wilright full value for the same. In the caption of the proceedings in the circuit court, also, Jones’s name was not mentioned as one of the defendants.
    The verdict being certified to the court of chancery, and the cause coming on for final hearing on the bill, answers, exhibits, and the verdict, the court made a final decree; in which, after stating, that it appeared, that the amount which came to the sheriff’s hands on the execution of Wilright against Hoover, was, on the return day thereof, 185 dollars, and that the debt proved *to be due from Gall to the plaintiff Janes, exceeded that sum, it was decreed that that sum with the interest thereon accrued, shoud be paid to Janes, in part satisfaction of the debt which the absent debtor Gall owed him, and that the administrator of Gall should pay him the balance of the debt, de bonis testatoris.
    The execution of Wilright v. Hoover was not one of the exhibits in the cause, and the amount of the proceeds thereof nowise appeared in the record, but from the statement in the final decree. In the caption to the final decree, the name of Jones was mentioned as a party defendant.
    Jones appealed from the decree to this court.
    Johnson, for the appellant,
    objected that the proceedings were wholly irregular, and in the actual state of the case on the record, there was no foundation for the decree. 1. The cause was set for hearing on the answer of Wilright, without any replication to that answer, or to the answer of Jones, denying the truth of them; and therefore the depositions must be disregarded, and the answers taken as true; and then, Wilright’s execution against Hoover was his own property, not Gall’s; and so could not be attached for the debt due from Gall to Janes. Neither ought the court to have directed the issue to be tried at law, when there was nothing put in issue between the parties, by the pleadings. 2. The verdict could not be binding on Jones; for it appeared by the caption to the order directing the issue, as well as. by the caption to the proceedings of the circuit court in the trial of it, that Jones, was not then regarded as a party defendant. These proceedings were, as to him, ex parte. 3. The execution of Wilright against Hoover was not among the exhibits, nor was there any document or evidence in the record, whereby the chancellor could ascertain that the amount of the proceeds of that execution was 18S dollars.
    *Leigh, for the appellee,
    answered, 1. that the depositions, some taken by commission, and some by consent, relating to the fact in controversy between the plaintiff Janes and the defendant Wil-right, were all filed before the appellant Jones was made a party; and Jones was admitted a defendant, upon condition that the hearing should not be delayed thereby; which plainly implied, that he waived the necessity of sending the cause to the rules for replications, a regular award of commissions, and the taking the depositions over again. 2. The captions to the interlocutory order directing the issue, and to the proceedings thereupon in the circuit court, were no part of the record: the parties to the proceedings were to be ascertained by the record, not by the clerk’s captions to the orders. Jones was a party defendant on the record; and at the final hearing, when he was certainly in court, he made no objection to the previous proceedings as ex parte. 3. As to the amount of Wilright’s execution against Hoover, the question was, whether the property in the debt had been transferred by Wilright to Gall; and this having been ascertained, Jones had no interest in the question what was its amount. Wilright did not appeal from the decree. Besides, it was plain, from the decree, either that the chancellor had the execution before him, or that its amount was agreed at the bar.
    
      
      The principal case is cited and approved in Bank v. Fleshman, 22 W. Va. 327.
    
   CARE, J.

The appellant Jones was admitted a party defendant in the county court, after all the depositions had been taken and filed, upon terms, that the hearing should not be delayed. Jones, in his answer, claimed the judgment and execution of Wilright against Hoover, on the ground of an assignment by Wilright to him. He admits that Gall had, previously to the assignment under which he claimed, presented an order from Wilright, to him Jones, then acting as deputy sheriff, and having the execution in his hands, for the amount thereof: *but he adds, that not long after, Wilright countermanded the order, and said he had lent the money to Gall, and as he had absconded and left the country, he should not have it. That this took place prior to Wilright’s assignment to Jones, is not only admitted in Jones’s answer, but is proved by the depositions. I state these facts, to shew, 1. That from the situation of the cause when Jones was admitted a party defendant, it being then ready for hearing, and all the depositions taken that ever were taken, the terms on which Jones was admitted to put in his answer, that is, not to delay the hearing, prove that no steps were to be taken to put the answer regularly in issue by replications, or to take the depositions over again, since either must have caused delay: 2. That from Jones’s own shewing, he had notice of Gall’s claim, when he took Wil-right’s assignment to himself; and that the only point on which he could possibly hope for success, was, that Wilright’s transfer to Gall should be proved to be a loan, and revocable; a point which was already controverted by Wilright’s answer, so that, in truth, Jones and Wilright, as respected Janes, occupied precisely the same ground, and if the transfer to Gall could be disproved, the only question would be, whether, Wilright or Jones should receive the money. The only point, then, in which Jones was interested, being in fact already in issue, it needed no step by replication to his answer, to enable him to take further proof touching the fact, if he thought proper, nor did the failure to reply to his answer authorize him to take it as a fact conceded to him, that the order from Wilright to Gall was a loan; because he no where in his answer asserts that fact; the utmost he says is, that Wilright told him so: and because too, the whole evidence in the cause, then ready for hearing, shewed him, that this was the only question in contest. The cause standing in this situation, was, by consent of the parties, removed to the superiour court of chancery of *Staun-ton. Then follows the order of the chancellor, directing the issue to be tried in Pendleton, to ascertain whether Wilright made an absolute sale of his claim against Hoover, or any part thereof, to Gall, and whether, if he did, Gall ever paid him for it. Upon this issue the jury find, that Wil-right did make an absolute sale to Gall of the whole claim, and that Gall had paid him for it. It happened, that in the caption of the chancellor’s order sending the issue to Pendleton, the name of Jones, asa party defendant, was omitted; and the same omission, of cotirse, followed in docketing the cause in Pendleton, as that would follow the other. This happened, perhaps, from carelessness; probably, from the fact, that the cause was new in the chancery court, and the names of the parties not familiar. But does any one suppose, that this omission was of any injury to Jones, the only appellant here, and, in truth, the only defendant really interested? Had he not consented to the removal of the cause to Staunton? Was he not a party there? Did he not by his counsel, attend to the ease there? And when it was sent to his own county, to try the only facts in which he was interested, can. we imagine, that this deputy sheriff would be either ignorant of, or inattentive to the trial of the issue? Would this accidental omission of his name in the caption, induce him to suppose, that this was another suit, not that to which he was a party? I can have no such idea; and though there have been some irregularities in the county court (one of which was the making Jones a party defendant, by the court, without consent of the plaintiff) yet, as I thinjs the clear justice of the cause has been attained, I am opposed to reversing the decree. Indeed, I am surprized that the chancellor should ever have thought of sending the cause to an issue, for to my mind, the depositions clearly prove a sale of Wil-right’ s claim against Hoover to Gall, before the transfer to Jones.

’''CABELL, J.

The condition on which Jones was admitted defendant, that is, of not delaying the hearing of the cause, took the case out of the ordinary rule, and implied that the depositions previously taken were to be read on the hearing; and this, by necessary consequence, absolved the plaintiff from the necessity of replying to the answers, and excluded that admission of the facts alleged in the answers, which, in ordinary cases, is the result of a failure to reply. The only question in the cause, was as to the fact of assignment from Wilright to Gall, not as to the date of that assignment; for if Wilright had really assigned to Gall, it was not denied, that that assignment preceded the assignment to Jones. Upon this question the evidence had been taken; and a jury afterwards passed upon it, and found in favour of Janes, that Wilright had assigned the claim to Gall, for full and valuable con-, sideration. There can be no difficulty as to the amount of the claim thus assigned: the decree of the court, as respects that matter, declares, that it appeared, that the amount which came into the hands of the sheriff of Pendleton, bj virtue of the execution of Wilright against Hoover was, on the return day thereof, 18S dollars. We cannot doubt, but that the execution shewing the amount, was before the court, although it is not now to be found in the record. I think the decree should be affirmed.

BROCKENBROUGH, J., concurred.

TUCKER, P.

I have no doubt the decree is according to the justice of the case, though there seem to me some irregularities that I cannot easily get over. My brethren, however, do not find the same difficulty, and for my own part, I feel no regret, that they are enabled to get over the mere technicalities which stand in the way of an affirmance.

Decree affirmed.  