Edward Smith; James Smith, D/b/a Tri-county Coal Company, Akentucky Partnership, Plaintiffs-appellants, v. John J. Nesius; Joseph W. Caldwell; P. Thomas Denny;joseph W. Caldwell; Susan Cannon-ryan, D/b/adenny and Caldwell, Attorneys at Law, Awest Virginia Legalpartnership,defendants-appellees, v. Nicholas D. Mccubbin; Cletus Maricle, Third-party Defendants.edward Smith; James Smith, D/b/a Tri-county Coal Company, Akentucky Partnership, Plaintiffs-appellees, v. Joseph W. Caldwell; P. Thomas Denny; Joseph W. Caldwelland Susan Cannon- Ryan, D/b/a Denny and Caldwell,attorneys at Law, a West Virginia Legalpartnership, Defendants-appellants,andjohn J. Nesius, Defendant, v. Nicholas D. Mccubbin; Cletus Maricle, Third-partydefendants-appellees.edward Smith; James Smith, D/b/a Tri-county Coal Company, Akentucky Partnership, Plaintiffs-appellees, v. John J. Nesius, Defendant-appellant,andjoseph W. Caldwell; P. Thomas Denny; Joseph W. Caldwelland Susan Cannon- Ryan, D/b/a Denny and Caldwell,attorneys at Law, a West Virginia Legalpartnership, Defendants, v. Nicholas D. Mccubbin; Cletus Maricle, Third-party Defendants, 861 F.2d 715 (4th Cir. 1988)

The real villain in this case fled with his loot and is no longer on stage as some of his victims act out the last scene in the story of his knavery. The district court ruled that the plaintiffs were not entitled to again collect the partnership claim after their former partner had collected and absconded.

We affirm.

Edward Smith and James Smith are partners in a Kentucky partnership known as Tri-County Coal Company. Tri-County sold coal to Amherst Industries, Inc. of Charleston, West Virginia. Amherst issued a check for $49,362.70 in payment for the coal. That check came into the hands of Leslie Ray, then or formerly a partner of the Smiths', but Amherst stopped payment on that check, apparently because of concern about its protection from duplicative claims of the partners.

Ray appeared in Charleston, West Virginia where he engaged a lawyer, John J. Nesius, to collect the claim. He sought payment to himself, claiming that the partnership had broken up, that he was responsible for the payment of certain partnership debts and that he sought collection of the partnership claim in order to pay those debts. Because of Amherst's concern that it receive more protection with its payment, Nesius, on behalf of Ray, filed an action against Amherst for collection of the claim. Amherst responded, admitting the debt, but impleading the Smiths and paying the money into the registry of the court.

The Smiths answered, claiming the money, and their lawyer, McCubbin, served a copy of the answer upon Denny and Caldwell, Amherst's lawyers. He did not serve a copy of the answer upon Nesius, Ray's lawyer.

After time for answering the interpleader had expired, Nesius prepared a motion for a judgment by default, in which it was asserted that the Smiths had not answered. Denny and Caldwell endorsed the motion, apparently in the mistaken belief that they had not received a copy of the answer of the Smiths. Nesius checked with the chief deputy clerk of the United States District Court for the Southern District of West Virginia. The answer had been filed there, but, unfortunately, it had not been properly indexed. The chief deputy clerk reported to Nesius that the Smiths had not answered.

The court granted a default judgment against the Smiths, and the funds in the registry of the court were disbursed to Ray.

Later, Denny and Caldwell disclosed that an associate in their office had discovered a copy of the Smiths' answer in their file, but insisted that they were unaware of its existence when they endorsed Ray's motion for a judgment by default.

The Smiths brought this action against Nesius, Ray's lawyer, and against Denny and Caldwell, Amherst's lawyers, alleging that the Smiths' loss had been caused by (1) the negligence of the lawyers; (2) their malicious prosecution of the Smiths; (3) their fraud; (4) their abuse of process; and (5) their violation of a constructive trust.

The lawyer defendants answered, putting each of the Smiths' claims in issue. Denny and Caldwell also sought some indemnification from Nichols D. McCubbin, the Kentucky lawyer for the Smiths, and one Maricle. They contended that a release given by the Smiths to their lawyer, McCubbin, was invalid or ineffective. They also contended that McCubbin should be disqualified from further representation of the Smiths, that the Smiths' complaint was time barred, and that, as to Nesius, their appeal was untimely.

We find it unnecessary to discuss any of these claims, cross-claims and objections. In dismissing the Smiths' complaint, the district court filed memorandum opinions in which it adequately stated the reasons why the several claims of the Smiths, as a matter of law, cannot be maintained.

We affirm for the reasons sufficiently stated by the district court.

AFFIRMED.