Armstrong v. Town of Grafton

Green, Judge •. The decree appealed from shows, that the circuit court decided this cause on the bill and answer. ' The case, which is made by the bill and answer, and which is the only case the court below has acted on, is whether if the bonds issued to Elizabeth Texter now Elizabeth ICalbe for the loan made by her to the town of Grafton in 1874, were issued without a previous compliance with the statute-law authorizing such bonds to be issued, would they become valid by the formal ratification of the voters of the town in 1881 in the manner prescribed by law of an ordinance authorizing the town-council to borrow money aud issue the bonds of the town therefor and authorizing them to apply the money, which might be so borrowed to the payment of these bonds issued in 1874 to Mrs. Elizabeth Texter now Mrs. Elizabeth Xalbe; and would this ordinance thus ratified confer now on the town-council a right to pay in the manner prescribed by this ordinance these bonds of Mrs. Kalbe. This case, the one really made by the bill and answer, the courts decided against the plaintiff, that is, decided that these bonds by reason of this recently ratified ordinance might be paid. The court of course regarded this ordinance and its legal ratification as a part of the case, on which it acted, as it was set out in the answer, which the court regarded as true, it not being replied to by the plaintiff. But the court committed a blunder in deciding this case as though heard on the bill aud answer; for the record shows that this answer was replied to generally, when it was filed, four months before this decree was rendered. The case as really shown by the record was far different from that decided by the court. There having been this general replication to the answer, and no proof having been taken, the new facts brought into the answer by way of avoidance, the passage of this ordinance and its ratification by a vote of the legal voters of Grafton, should, have been considered as forming no part of the case acted upon by the court; and when excluded the whole case really, properly before the court,'would have been the case stated in the bill, for all the allegations in the bill were admitted in the answer. The case made by the bill, the one really presented by this record is simply, whether the bonds issued by the town of [56] Grafton in 1874 to Mrs. Elizabeth Texter are valid, thus having been issued without first submitting to the qualified voters of said town all questions connected with the issuing of said bonds. Oh this question the circuit court of Taylor county has never acted. The case it acted upon, as we have seen, being the case made by the bill and ans'wer was an entirely different case, involving not the question of the original validity or invalidity of those bonds but the question, whether they could not now be paid, whether originally valid or invalid, by reason ot the ratification of the ordinance in 1881 authorizing their payment. It is clear, that this Court must sot aside, reverse and annul the decree of August 4, 1881, because it was based on the bill and answer only, and because the court failed to consider the general replication to the answer, which had been filed four months before, and which entirety changed the case. And the appellant must recover of the appellees other than his co-plaintiffs his costs in this Court expended. But this Court cannot render a decree on the merits of the case, because its real merits as shown by the record have never been acted upon or considered by the court below, the case, which it did consider and decide, being, as we have seen, entirety different from the case presented by this record. This is a court of appellate, not original jurisdiction. Our duty is to review the decisions of the circuit court. It is not proper for us to render a decision on a case which has never been considered or decided by the circuit court. If the case has been submitted to the court, we must presume that it acted upon all tlie questions involved in the case thus submitted; and upon appeal we would decide all such questions, oven though we might believe that certain of them had not been considered by the court below. But if the record affirmatively shows, that the court below, as the case was submitted to it, could not property have acted on the case presented to this Court by the record, but had fairly submitted to its judgment by a blunder a far different case, then this Court should after setting aside its decree remand the case to the circuit court to be first decided by it, and not undertake to consider first and act upon the case ourselves, as if we were a court of original jurisdiction. [57] In tbe ease of Chaplin v. P. & S. R. R. Co. et al., 18 W. Va. 199, this Court declined to decide, whether an attachment should be quashed on the ground that the affidavit, on which it was based, was fatally defective, because it affirmatively appeared, that though this question might have been decided by the court below, yet it never had been, but this part of the case had been continued. In thus declining to act upon the ease as at present presented it must be understood, that we have considered none of the questions so elaborately argued in this Court. We have not considered, whether the original hill is so defective as to be liable-to demurrer; and if the plaintiffs desire to amend it on the return of this case to the circuit court, they should be allowed to do so. Nor have we considered whether the answer, which has been filed, can be considered as a cross-bill; and this question is left open for the circuit court to determine on the return of this case to that court, if it becomes necessary. The defendant, Elizabeth Kalbe, should, if she asks, be allowed to file her answer; and depositions should be permitted to be taken by any of the parties. In short the cause will be proceeded with in the circuit court precisely as if no decree had been rendered by that court or by this Court. We by our action simply reverse the decree of August 4, 1881, as entered by inadvertance on a different ease than that presented by the record, and remand the cause to the circuit court of Taylor county to be proceeded ' with, as if no decree had ever been entered in said cause, in accordance with the principles laid down in this opinion and further according to law. Reversed and Remanded.