Yates v. Taylor County Court

English. Judge: Thomas G. Yates was assigned as counsel bv the circuit court of Taylor County to defend one Frank Powell, who was charged with felony; and on the 25th of April 1899, an order was entered bv said court by which he was allowed an attorney’s fee of twenty-five dollars, and the same was ordered to be- certified to the county court for payment. On the 17th of May, 1899, said Yates brought an action before a justice of said county against the county court to recover said claim, in which he alleged he would demand judgment for twenty-five dollars, with interest and costs. The plaintiff, in his complaint, stated that said claim was presented to the county court for payment at its May term, 1899, but does not say that payment thereof was refused. The defendant, in its plea, claimed that the order of the circuit court allowing plaintiff twenty-five dollars for defending Powell was never presented to defendant by its clerk, and that it did nut neglect or refuse to act on the order and certificate, and never disallowed plaintiff’s claim, in whole or in part, and that the certificate of the circuit court did not bind or authorize it to levy on the taxpayers for the payment of the same. The defendant made no further defense, the plaintiff proved his claim, and judgment was rendered in his favor for thé amount claimed, interest and costs. An appeal was taken to the circuit court. On the 23d of September the defendant moved the circuit court to quash the summons, which motion was overruled. The defendant also filed a plea in writing, to which the plaintiff replied generally, and defendant moved the court to reject the plaintiff’s account, indorsed, “Lodged in the clerk’s office 21st day ot September 1899,” which motion the court overruled. The case was submitted to a jury, which found a verdict in favor of the plaintiff for twenty-five dollars, and judgment was rendered thereon against the defendant, which thereupon presented a petition to a judge of this Court, praying that a writ of prohibition be awarded it, to prevent said circuit court from further proceeding in said action; and a rule was awarded, réturnable to the first day of this term. The respondent — 378 — Yates demurred to the petition of the county court, and moved to quash the rule and dismiss the petition. The question presented for consideration by this record is whether the justice or the circuit court had jurisdiction of the action brought by Yates. Section 41 of chapter 39 of the Code provides that “no suits shall be brought against a county court for any demand for. a specified sum of money founded on contract, except an order on the county treasury, until such demand has been presented to such court and has been disallowed by them .in whole or in part.” See Chapman v. Wayne County Court, 27 W. Va. 496. In 16 Enc. Pl. & Prac. p. 1132, the law is stated thus: “When the jurisdiction of an inferior court is derived from a statute prescribing the manner of procedure in an action, it may be prevented by the writ of prohibition from departing from the manner prescribed.” See Wilkinson v. Hoke, 39 W. Va. 403, (19 S. E. 520); West v. Ferguson, 16 Gratt. 270. In Ex parte Ellyson, Gratt. 10, it is held: “The writ of prohibition is onty a proper proceeding to restrain a judge from exceeding his jurisdiction, and not to correct an erroneous judgment in a case in which he has jurisdiction.” See Buskirk v. Judge of Circuit Court, 7 W. Va. 91. High, in his work on Extraordinary Legal Remedies (section 762), in speaking of the writ of prohibition, says: “The object of the writ being to restrain subordinate judicial tribunals of every kind from exceeding their jurisdiction, its use in all proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined strictly to the exercise of those powers with which it has by law been intrusted.” And in section 764 the author says: “The appropriate function of the remedy is to restrain the exercise of unauthorized judicial or quasi judicial power, which is regarded as a contempt of the State or sovereign, and which may result in injury to the State or its citizens.” The respondent J. H. Holt, denies that he is proceeding without jurisdiction or authority of l_w, but, on the contrary, avers, as is shown by the record filed with the petition, that .said circuit court took cognizance of said cause at the special instance of the petitioner, who now denies the — 379 — jurisdiction of said court, after appealing- to it, simply because the decision was adverse. In 12 Enc. PI. & Prac. p. 126, it is said: “It is accordingly a well-settled and universally applied principle that consent of parties cannot confer upon a court jurisdiction which the law does not confer, or confer upon some other court, although the parties may by consent submit themselves to the jurisdiction of the court. In other words, consent cannot confer jurisdiction of the subject-matter, but it may confer jurisdiction of the person,” — citing numerous authorities. It says also (Id. p. 201): “Every presumption is in favor of the regularity of the proceedings of courts of general jurisdiction, even though the record is silent. The foregoing rules generally apply to courts of limited and inferior jurisdiction, the only difference between courts of general and courts of special jurisdiction being that the record of the latter must show jurisdictional facts.” See, also, Galpin v. Page, 18 Wall. 350, (Syl., point 2, latter clause), 21 L. Ed. 959. The defendant, in its plea filed before the justice, denied that the order of the circuit court allowing plaintiff twenty-five dollars for defending Powell was ever presented by its clerk, or that it neglected'or refused to act on the order, and claims that it never disallowed said claim, in whole or in part; and nothing appears in the record to contradict the allegation. The presentation of the claim to the. county court, and its refusal to allow the same in whole or in part, having been made a condition precedent to the institution of a suit for the same against said court, and it not appearing affirmatively from the record that there had been such action on the part of the county court, we must hold that neither the justice nor the circuit court had jurisdiction to hear and determine this case. In order that a valid judgment may be rendered by a court, whether of limited or general jurisdiction, the suit must be brought against the party upon whom the liability rests.- In other words, where A. owes a debt, a suit brought against B., and process served upon him, will not authorize the rendition of a judgment against B. for the debt of A. Now, unless this twenty-five dollars was a debt of the county of Taylor, suit brought against said county, and process served on it, would not give the court — 380 — jurisdiction to render judgment on the claim. Was the county in any manner liable? We find no statute fixing the liability for its payment upon the county, and, when we look to the statutes providing for the wants of persons charged with felony, it appears from section 3 of chapter 161 that medical attendance and clothing for persons in jail, charged with felony, shall be paid out of the State treasury.. The service of a stenographer in taking down the testimony on his trial is also thus paid. And section 1 of chapter 159 of the Code provides that the accused shall be allowed counsel, if he so desires, to assist in his defense, a copy of the indictment, and a list of the jurors selected or summoned for-his trial, without fee; and, while this may be interpreted, without expense to the accused, yet, if it is to be paid by the county, why is the statute silent on this point? If the manner of payment is to be governed by the statute controlling the payment of his other necessary expenses, it would be paid by the State, and not by the count}'. There is no statute that even by the most remote analogy makes this twenty-five dollars a charge against the county. If it is claimed that the judgment fixes the liability on the county, and for that reason prohibition will not lie, I answer that it would create a deplorable state of affairs if every claim, however illegal or unfounded, would be made legal and valid by suing before a justice and obtaining a judgment against the county; but, fortunately, such is not the law of this State, and it has been so held in several cases. Prohibitions will lie to prevent the enforcement of judgments, even after executions have been placed in the officer’s hands. In French v. Noel, 22 Gratt. 544, (Syl., point 3), it was held that “after the judgment of the circuit court has been rendered, as well as before, the person injured by the judgment may apply to the court of appeals for a writ of prohibition to restrain the appellant and the judge from proceeding to enforce said judgement.” See, also, Hein v. Smith, 13 W. Va. 358, (Syl., point 3); Wilkinson v. Hoke, 39 W. Va. 403, (19 S. E. 520). I am aware that this Court, in the case of Wells v. Town of Mason, 23 W. Va. 456 (a mandamus case to compel said town to pay a judgment in favor of Wells for medical services rendered to a pauper, in which town it was not the duty of — 381 — the common council to support the poor residing therein), held, that the judgment in said case conclusively determined that the town was chargeable with the sum for which judgment was rendered, and that the payment of such judgment against a town, however erroneous, if no writ of error has been taken, should be provided for by taxation, and if it be not done, and it cannot be collected by execution, its payment should be enforced by mandamus. But this judgment was obtained before the Mason. County court on the 4th of June, 1877, the court at that time being a court of general jurisdiction, and no question was raised as to the jurisdiction. In Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959, it was held that: “A court of general jurisdiction, proceeding within the general scope of its powers, is presumed to have jurisdiction to give the judgment it renders, until the contrary appears; and this presumption embraces jurisdiction not only of the cause or subject-matter of the action in which the judgment is given, but of the parties, also. The rule is different with respect to courts of special or limited authority. Their jurisdiction must affirmatively appear by sufficient evidence or proper averment-in'the record, or their judgments will be deemed void on their face.” So, also, in Pulaski Co. v. Stuart, 28 Graft. 872, we find that, “where a court of general jurisdiction acts within the scope of its general powers, its judgment will be presumed to be in accordance with its jurisdiction, and cannot be collaterally impeached.” As we have seen, it is different where the suit is brought before a justice. In Mayer v. Adams, 27 W. Va. 245. it was held that “the jurisdictional facts necessary to give a court of special and limited jurisdiction a right to act must appear in the record of its proceedings, or such proceedings will be regarded as bad, without any jurisdiction, and therefore absolute nullities.” As to courts of inferior jurisdiction, it is said in 12 Enc. PI. & Prac. 176, that “no presumption is indulged in favor of the jurisdiction of inferior courts exercising special statutory powers not according to the course of the common law, but their records must affirmatively show the facts which confer jurisdiction.” It may be suggested in this case that the facts proven were not certified, and for that reason it cannot be deter — 382 — mined whether the justice had jurisdiction or not. To this suggestion I reply that no proof could possibly be furnished which would make the debt upon which this suit was predicated the legal debt of the county, and service of process upon the president of the county court could not confer jurisdiction. The'character of the plaintiff’s claim is set forth in his complaint, and while he avers that it was presented to the count};- court for payment at its May term, 1899, he'does not allege that payment thereof was refused, which the statute makes a condition precedent to a suit upon any claim against the county founded on contract. In this case no writ of error could have been obtained irom the judgment of the circuit court, because the amount involved was insufficient, and prohibition was the only remedy. Upon the question as to whether the judgment of the court was conclusive of the fact that the county of Taylor was chargeable with said claim, in the case of Bodley v. Archibald, 33 W. Va. 229, (10 S. E. 392). Snyder, P., delivering the opinion of the Court, held, that “prohibition will lie to prohibit justices, and other petty tribunals which are limited by law to the decision of controversies where the amount falls within a specified sum, from exercising a jurisdiction wholly beyond their authority, even after judgment, but before the judgment has been fully carried into effect, and in such cases the want of jurisdiction may be made to appear by matters dehors the record of the proceedings before such inferior tribunals.” See, also, High, Extr. Rem. § 774, and Manufacturing Co. v. Carroll, 30 W. Va. 352, (4 S. E. 782), in which the circuit court was prohibited from enforcing a decree after it was rendered. The character of the claim sued on before the justice in this case is shown by the transcript of the justice’s proceedings, and no new pleadings were filed in the circuit court .on appeal: and this Court will take cognizance of the fact that there is no statute authorizing the payment of such a claim by the county court, or creating- any liability upon the county for thepaj'mentof attorneys appointed by the circuit court to perform such services. Now, while no formal plea to the jurisdiction was filed before the justice, yet facts were stated in the plea which showed that — 383 — no suit could be brought on the claim against the county —First, because the claim had not been presented to the county court and disallowed; and, secondly, because the claim presented was not of sucn character as to bind or authorize the defendant to levy upon the taxpaj^ers for its payment. The statute provides that such pleadings are not required to be in any particular form, but must be such as to enable a person of common intelligence to know what was intended. On the question of jurisdiction of the subject-matter, we find on pages 188, 189,12 Enc. PI. & Prac., the law thus stated: “When the court has no lawful power to act by reason of the fact that such power is not conferred, or is expressly withheld, with regard to the subject-matter of the suit, the parties thereto cannot be said to have waived their objection to the want of power because it is not made at the proper time. Such objection cannot be waived, and is fatal at any stage of the proceedings,” — citing Beckley v. Palmer. 11 Gratt. 625. The recovery of the claim sued on in this case from Taylor County is not authorized by the common law, because the service rendered in defense of said criminal, although it might entitle the plaintiff to compensation, created no liability upon the county to pay the same, and no statute authorizes its payment by the county. In the case of Norfolk and W. R. Co. v. Pinnacle Coal Co., 44 W. Va. 574, (30 S. E. 196), 41 L. R. A. 414, this Court held that, “although a justice of the peace has jurisdiction of civil actions of debt, he exceeds his legitimate powers whenever he extends such jurisdiction to include matters of controversy or causes of action unknown to the common law, and unauthorized by legislative enactment.” It is manifest that a claim unauthorized by law- is sought to be legalized by service of process on the president of the county court of Taylor County, aud obtaining- a judgment for the amount thereof before a justice, when the justice had no jurisdiction, either of the defendant or the subject-matter. In my opinion, a wi'it of prohibition should be awarded, to prevent the circuit court of Taylor County from further proceeding to enforce the judgment rendered by it upon appeal from said justice’s judgment against the county court of Taylor County.