
    Shumate v. Dunbar.
    Decided, Nov. 9th, 1819.
    1. Appellate Practice — Transcript of Decree States Cause Heard on Bill, Answer and Exhibits — Effect.—■ If it be stated, in the transcript of a decree in Chancery, that "the cause came on to be heard on the bill, answer and exhibits;” such hearing must be understood to have been in exclusion of the depositions contained in the record; no proof appearing of notice of the time and place of taking those depositions.
    2. Same — Same—Same.—In such cases, if'the answer deny the Equity in the bill, and be not impugned by the exhitits, a decree in favour of the plaintiff should be reversed, and the bill dismissed.
    This was a suit in Chancery, in the County Court of Fauquier, brought by Robert Dunbar against Armistead Shumate an absent defendant residing in South Carolina, and Joseph Shumate a resident of the said County.
    
      The object of the Bill was to subject certain property belonging to Armistead Shu-mate, alledged by the plaintiff *to be in Joseph Shumate’s possession, to satisfy a claim of the plaintiff against the said Armistead. The answer of Joseph Shumate denied that any such property was in his possession. A general Replication was filed by the plaintiff’s Counsel, and sundry depositions were taken to impugn the statement in the answer; but no proof of notice, by publication in the newspapers or otherwise, of the time and place of taking those depositions, appeared in the record.
    According to the transcript of the Decree,' 4 4 the cause came on to be heard upon the bill, answer and exhibits; (saying nothing of depositions;) iland, it appearing to the satisfaction of the Court, that proper pro-ceedingvS had been had against the absent defendant,” it was decreed that a negro girl in the proceedings mentioned, be sold at public auction, by the Sheriff, to satisfy the plaintiff’s claim, &c.
    Upon an appeal, this Decree was affirmed by the Superior Court of Chancery for the Rredericksburg District; whereupon, the defendant Joseph Shumate again appealed.
    
      
       Appeliate Practice — Transcript of Decree States Cause Heard on Bill, Answer and Exhibits — Effect.—In Nelson v. Cornwell. 11 Gratt. 724, one of the head-notes reads: A cause is brought on to be heard upon the bill, answer, exhibits and award; qumre if the depositions and commissioner’s report are a part of the record, and evidence as such in a case in which the record is evidence. But Judge Moncuke, in delivering the opinion of the court, said: “I also incline to think that even if the record be admissible, the depositions copied therein are properly a part thereof. They all appear to have been taken by the commissioner and returned with his report which was recommitted; and before another report was made, there was an order of reference in the suit, and a final decree thereon. Tlie decree recites that the cause came on to be heard on the bills, answers, exhibits and awards; say ins nothing1 of the commissioner’s report and depositions; which seem therefore to be no part of the record, according1 to the case of Shumate v. J)un-.bai\ 6 Munf. 430. But without expressing any definite opinion upon these questions, and considering the said record and depositions as admissible evidence, I am still of opinion that it does not alter the case.”
      In Day v. líale, 22 Gratt. M6, it was held that, where depositions are taken and filed in a cause both parties having been present when they were taken, and the decree is obviously based upon them, tlie omission to refer to them, in the decree will be considered a clerical mistake, and the cause will be considered as having been heard upon them, as well as upon the other papers. See reference in this case at p. 180 to the principal case.
      In Camden v. Haymond, 9 W. Va. 881, it was held that where a decree recites that the cause came to be heard on the bill, answer and general replication thereto, if, on an appeal from such decree, depositions which have been taken to support the answer are copied into the record, such depositions cannot be read or considered in the appellate court. Jn delivering the opinion of the court Judge Greek said: “There are appended to the record several depositions, designed to sustain these allegations in the answer of Camden; but the recitals in the decree of January 24. 1874, of what the cause was heard upon, shows that it was not heard on these depositions. Why it was not heard on these depositions also does not appear, but, in the absence of any objection to their exclusion being made in the circuit court, this court cannot regard their exclusion as any error. And not having been read in the court below, they cannot be read or considered in this court. Shumate v. Dunbar. 6 Munf. 431.”
      In Turnbull v. Clifton Coal Co., 19 W. Va. 299, 306, 307. 308, after an exhaustive review oí the cases on the subject, the principal case and Nelson v. Corn-well, 11 Gratt. 741, are distinguished and the case of Day y. Hale, 22 Cratt. 146, is approved. In this case (Turnbull v. Clifton Coal Co.) it was bold that it is not necessary /or it to appear that both parties were present a.t the taking of the depositions and cross examined each other’s witnesses, if it appears that the defendants had reasonable notice oí the time and place of taking the depositions.
      Again in Renick v. Ludington, SO W, Va. 533, JtruGK (¡been said: “These decisions (¿. e. Camden v. Haymond. 9 W. Va. 690, and Shumate ». Dunbar, 6 Munf. 430) have since been commented on. and explained in subsequent cases both in Virginia and West Virginia. See especially, the cases of Day v. Hale, and Hale v. Hare. 22 Gratt. 146; anti Turnbull v. Clifton Coal Co . 19 W. Va. 299, and the cases cited in them. From these cases we inay deduce, that the cases of Shumatev. Dunbar, OMunf. 430; and Camden v. Haymond. 9 W. Va. 690, were based on the fact, that the conrt had in them no evidence that the depositions constituted any part of the record except the simple fact that they were copied by the clerk in making out the record on which the appeals were allowed; and that had it appeared, that these depositions had been endorsed by the clerk In the circuit court, as filed at a time prior to the decree and they regularly taken, on notice, and the witnesses cross-examined, and they were necessary to justify the decree that was entered, they would be considered by the appellate court as a part of the record, on which the decree of the circuit court was rendered, though the court failed to state on the face of the record, as it should have done, that the cause was heard on. these depositions. In such case this failure would be regarded as a clerical omission in drawing the decree.” See further, monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263; monographic note on “Depositions” appended, to Field v. Drown, 24 Gratt. 74.
    
   The Decree of this Court was as follows;—

This case having come on upon the bill, answer and exhibits; in exclusion of the depositions contained in the record; and the answer having denied the equity in the bill; the decree is to be reversed, and bill dismissed; but without prejudice to any suit the appellees may be advised to bring against Armistead Shumate, or against him and any person other than the present appellant.__  