Court Cases

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West Virginia

Ferrell v. Ferrell, 53 W. Va. 515 (1903)

Before the West Virginia Supreme Court, 1903, W. Va. 515 (1903) 53.

Ferrell v. Ferrell, 53 W. Va. 515 (1903)
May 2, 1903 · Supreme Court of Appeals of West Virginia
53 W. Va. 515
Ferrell v. Ferrell
CHARLESTON.
Submitted February 13, 1903.

Summary
Appeal from Circuit Court, Logan County.

Bill by Floyd Ferrell against F.A.J. Ferrell and others. Decree for plaintiff, and defendants Ferrell appeal.

Disposition

Reversed.

Discussion
1. Summons — Suit.

The issuance of a summons brings a suit into existence at its date. (p. 519).
2. Suit — Equity—Summons—Infant.

Where there are only two defendants to a bill in equity, one adult, the other infant, and after summons issued, though not served, the bill is filed in term, with the consent of the adult, and the court appoints a guardian ad litem for the infant, and his answer is filed, there is thus a cause for the action of the court and it has jurisdiction to decree upon the matter of the hill, and its decree is neither void nor erroneous for the mere cause of want of service of the summons, or that the bill was not filed at rules, (p. 519).

3.Process — Infant—Guardian ad litem.
There need not be service of process on an infant. The appointment of a guardian ad litem and his answer for the in-' fant stand in place of such service, (p. 519).

4.Deed — Mistake—Equity.
Equity will entertain a bill to reform a deed where it is alleged the scrivener has, by some mistake, so drafted it as to not execute the intention of the parties, (p. 519).

5. Deed — Mistake.
Generally, to warrant equity to reform a deed for mistake the mistake must be mutual; but where there are not two parties to the contract, and by mistake of the scrivener the instrument does not execute the purpose of the party executing, the deed, equity will reform the deed at his instance, (p. 520).

6. Errok — Decree—Bar.
A release of error in a decree will bar a bill of review to reverse it. (p. 521).

7. Signature — Contract.
If one sign a written contract without acquainting himself with its contents, he is estopped by his own negligence from asking relief against its obligation, if his- signature is procured without fraud. (p. 521).

Attorneys

Campbell, Holt & Duncan, Sheppard & Goodykoontz, and H. K. Shumate, for appellants.

John B. Wilkinson and John S. MaROum, for appellee