laid down rule in West Virginia

1961Lance & Company, 50 W.Va. 636, 642 , 41 S.E. 128, 130 , the Court said: "* * * This Court laid down the rule in Smith v. Johnson, 44 W.Va. 278 , 29 S.E. 509 , as follows: `When a defendant, by bill in equity, seeks to nullify a judgment at law obtained against him without service of process, upon unauthorized appearance by attorney, to succeed he must have a clear preponderance of evidence sustaining the allegation of his bill.' Proceedings by motion and by bill in equity in such case are both direct, and not collateral and the rule must be the same.

1961Lance & Company, 50 W.Va. 636, 642 , 41 S.E. 128, 130 , the Court said: "* * * This Court laid down the rule in Smith v. Johnson, 44 W.Va. 278 , 29 S.E. 509 , as follows: `When a defendant, by bill in equity, seeks to nullify a judgment at law obtained against him without service of process, upon unauthorized appearance by attorney, to succeed he must have a clear preponderance of evidence sustaining the allegation of his bill.' Proceedings by motion and by bill in equity in such case are both direct, and not collateral and the rule must be the same.

1951Co., 65 W.Va. 346 , 64 S.E. 355 , the Court laid down the rule that: "A verdict depending, wholly on conflicting oral testimony of witnesses in the presence of the jury, will not be set aside on the sole ground that it is against the weight and preponderance of such evidence.

1951Co., 65 W.Va. 346 , 64 S.E. 355 , the Court laid down the rule that: "A verdict depending, wholly on conflicting oral testimony of witnesses in the presence of the jury, will not be set aside on the sole ground that it is against the weight and preponderance of such evidence.

1994Finally, in State, Agency of Transportation v. City of Winooski, 147 Vt. 649, 650 , 520 A.2d 998, 999 (1986), the court laid down this test for its acceptance of a certified question: Only those questions should be certified up before judgment which bring with them a framework sufficient to allow this Court to issue a decision which will be pertinent and inevitable in the disposition of the case below.

1977Va. 189 , 28 S.E.2d 423 (1943), this Court laid down the principle that in the absence of a specific request for possession of enumerated personal property, the trial court is not authorized to award ownership of personal property in a divorce action.

1967Association, et al., 45 W.

1961Wandling v. Straw, 25 W.Va. 692, 703 ." In Lough v. Taylor, 97 W.Va. 180 , 124 S.E. 585 , the Court held: "Where in a suit brought by a judgment creditor of defendant to subject lands of defendant to sale to satisfy the judgment rendered by a court having jurisdiction of the parties and the subject-matter, the defense is that the judgment was procured by fraud, such defense is an attempt to impeach the judgment collaterally, and plaintiff's motion to strike from the record the answer setting up such defense is properly sustained." These authorities and, I believe, practically all authorities,

1961Wandling v. Straw, 25 W.Va. 692, 703 ." In Lough v. Taylor, 97 W.Va. 180 , 124 S.E. 585 , the Court held: "Where in a suit brought by a judgment creditor of defendant to subject lands of defendant to sale to satisfy the judgment rendered by a court having jurisdiction of the parties and the subject-matter, the defense is that the judgment was procured by fraud, such defense is an attempt to impeach the judgment collaterally, and plaintiff's motion to strike from the record the answer setting up such defense is properly sustained." These authorities and, I believe, practically all authorities,

1961Wandling v. Straw, 25 W.Va. 692, 703 ." In Lough v. Taylor, 97 W.Va. 180 , 124 S.E. 585 , the Court held: "Where in a suit brought by a judgment creditor of defendant to subject lands of defendant to sale to satisfy the judgment rendered by a court having jurisdiction of the parties and the subject-matter, the defense is that the judgment was procured by fraud, such defense is an attempt to impeach the judgment collaterally, and plaintiff's motion to strike from the record the answer setting up such defense is properly sustained." These authorities and, I believe, practically all authorities,

1961Lance & Company, 50 W.Va. 636, 642 , 41 S.E. 128, 130 , the Court said: "* * * This Court laid down the rule in Smith v. Johnson, 44 W.Va. 278 , 29 S.E. 509 , as follows: `When a defendant, by bill in equity, seeks to nullify a judgment at law obtained against him without service of process, upon unauthorized appearance by attorney, to succeed he must have a clear preponderance of evidence sustaining the allegation of his bill.' Proceedings by motion and by bill in equity in such case are both direct, and not collateral and the rule must be the same.

1961Lance & Company, 50 W.Va. 636, 642 , 41 S.E. 128, 130 , the Court said: "* * * This Court laid down the rule in Smith v. Johnson, 44 W.Va. 278 , 29 S.E. 509 , as follows: `When a defendant, by bill in equity, seeks to nullify a judgment at law obtained against him without service of process, upon unauthorized appearance by attorney, to succeed he must have a clear preponderance of evidence sustaining the allegation of his bill.' Proceedings by motion and by bill in equity in such case are both direct, and not collateral and the rule must be the same.

1950Va. 732 , at page 742, 20 S. E. 696 , the Court, in considering such a declaration, stated: “* * * the declaration must in such cases have the requisite definiteness to inform the defendant of the nature of the cause of action, and the particular act or omission -constituting the tort, else a demurrer will lie. * * This statement was reconsidered in the case of Snyder v. Wheeling Electrical Company, supra, wherein the Court laid down the rule that: “A declaration for tort arising from negligence may allege the mere negligence generally, without stating the particular facts going to prove negli

1950This Court has followed this rule in many cases, including Gilkerson v. Railroad Company, 129 W.

1950Va. 278 , 61 S. E. 811 , this Court laid down the rule which prevails in this jurisdiction: “In an action for damages, resulting fro'm injury by negligence, a variance of the evidence from the declaration, in respect to specification of mere matters of detail, concerning the manner, not the time or place at which, or the instrumentalities by which, the injury was inflicted, is immaterial.” In that case the •declaration alleged that the collision between defendant’s train of cars, while being switched against a standing car on which plaintiff’s decedent was at work, caused the lumber to be thro

1949In Greaser v. Oil Co., 109 W.Va. 396 , 155 S.E. 170 , this Court laid down a test for determining the relationship of master and servant in the following language: “The test of the relation between one having work done and the workman consists in the employer’s right or lack of right to supervise the work.

1949In Greaser v. Oil Co., 109 W.Va. 396 , 155 S.E. 170 , this Court laid down a test for determining the relationship of master and servant in the following language: “The test of the relation between one having work done and the workman consists in the employer’s right or lack of right to supervise the work.

1917In Fifield v. Bank, 148 Ill. 163 , the Court laid down the rule for determining when such property was fixtures and when mere chattels as follows: “The rule for determining what are to be regarded as fixtures is as follows: First, real or constructive annexation of the thing in question to the realty; second, appropriation or adaptation to the use or purpose of that part of the realty with which it is connected; and third, the intention of the party making the annexation to make it a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the

1917In Fifield v. Bank, 148 Ill. 163 , the Court laid down the rule for determining when such property was fixtures and when mere chattels as follows: “The rule for determining what are to be regarded as fixtures is as follows: First, real or constructive annexation of the thing in question to the realty; second, appropriation or adaptation to the use or purpose of that part of the realty with which it is connected; and third, the intention of the party making the annexation to make it a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the

1917In Fifield v. Bank, 148 Ill. 163 , the Court laid down the rule for determining when such property was fixtures and when mere chattels as follows: “The rule for determining what are to be regarded as fixtures is as follows: First, real or constructive annexation of the thing in question to the realty; second, appropriation or adaptation to the use or purpose of that part of the realty with which it is connected; and third, the intention of the party making the annexation to make it a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the

1902In Barfield v. Price, 40 Cal. 535 , the court laid down this rule: “If the plaintiff supposes he is selling a different tract of land from that conveyed, and the defendants think they are purchasing the tract actually conveyed, there was a mutual mistake as to the subject matter of the contract, in which case there is in fact no contract of sale.” Such being the law it becomes practically unimportant and immaterial whether Meeks was or was not the agent of Wilson, although it is laid down in McKinnon v. Vollmar, 6 L.

1896Upon this question this Court laid down the rule in the case of Stewart v. Railroad Co., 38 W.

1896Va. 438 ( 18 S. E. 604 ) as follows: “The measure of the damages is such a sum as will make the owner whole; that is, the depreciation of the market value of the abutting property caused by the railroad company laying their track and running their trains in the street.

1881A business thus carried on by the wife for the purpose of keeping property purchased by her from the reach of her husband’s creditors would not be a fraud upon the creditors of the husband, un less the necessary result was to hinder, delay, or defraud such creditors in the collection of their debts; and if the property in question would never have come to the possession of either the husband or wife, except in pursuance of an understanding, that she should be the purchaser, and carry on the business by means of it, such a purchase cannot wrong the husband’s creditors.” In Keller v. Mayer, Stra

1881Now it seems to us, that when the question arises, whether by the fact of their living together as husband and wife and their dealing, he receiving the income of her estate, she has not so consented as to preclude her from ever recalling it, the distinction we have attempted to point out becomes essential, the status of the parties in the two cases beings so materially different.” Rankin v. West, 25 Mich. 195 , under astatute similar to ours, the court laid down the doctrine, 'that “A married woman may carry on business in her own name, and her husband may act as her agent in carrying on such