Phelps & Pound v. Smith & Co.
West Virginia Supreme Court
Writ of error and supersedeas to a judgment of the municipal court of Wheeling, rendered on the 23d day of September, 1875, in an action of assumpsit in said court then pending, wherein D. F. Phelps and G. F. Pound, partners, were plaintiffs, and A. E. Smith and Arthur M. Teece, partners, were defendants, allowed upon the petition of said defendants. Hon. Gibson L. Cranmer, judge of the municipal court of Wheeling rendered the judgment complained of.
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Writ of error and supersedeas to a judgment of the municipal court of Wheeling, rendered on the 23d day of September, 1875, in an action of assumpsit in said court then pending, wherein D. F. Phelps and G. F. Pound, partners, were plaintiffs, and A. E. Smith and Arthur M. Teece, partners, were defendants, allowed upon the petition of said defendants. Hon. Gibson L. Cranmer, judge of the municipal court of Wheeling rendered the judgment complained of. Moore, Judge, furnishes the following statement of the ease: D. R. Phelps and G. F. Pound, partners doing business under the firm name and style…
1Opinion of the CourtMoore, Judge
The appellants assign the following grounds of error :
“ 1. The affidavit of Mr. Teece, filed in support of the motion to set aside the judgment, shows that the claim sued upon was paid, and the case settled, excepting the costs of suit, with one of the plaintiffs’ attorneys. Another claim was afterwards substituted for the one sued upon and paid, and the judgment complained of was obtained upon this substituted claim. The judgment was, therefore, obtained by fraud, and the court erred in refusing to set it aside.
“ 2. The writ of inquiry in the case was not executed, but judgment was rendered…
2Cited by17 opinions
- Pegram v. StortzWest Virginia Supreme Court · 1888
- Griffith v. CorrothersWest Virginia Supreme Court · 1896
- Smith's Adm'r v. Charlton's Adm'rSupreme Court of Virginia · 1851
- Adkins v. AdkinsWest Virginia Supreme Court · 1957
- Slater v. MeltonWest Virginia Supreme Court · 1937
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