Wade v. Carney

BobiNSON., .Judge: M. Gr. and Harry D. Knox conveyed land to IT. T. Wade. Subsequently the land was sold at a tax sale to Carney, for taxes assesse'd in the names of the Knoxes prior to their conveyance to Wade. This suit by Wade assailed the tax deed made to Carnejg and the proceedings upon which it was based, as illegal [757] and invalid. The court below held the tax deed good and entered a decree dismissing the cause. Then Wade, because he had thus lost the land, sued the Knoxes, in an Ohio court, on their covenants of general warranty in the deed whereby they conveyed to him. The Knoxes besought Wiade to appeal from the decree by which he lost his suit for support of the title they had conveyed to him'. He refused to litigate further the question of the invalidity of the tax sale and deed. So the Knoxes, though they were not parties to the cause, applied for an appeal from the decree dismissing Wade’s suit against the tax purchaser, and for a supersedeas thereto, and ’the same were awarded unto them. A motion to dismiss the appeal and supersedeas as improvidently awarded is presented. That motion, we find, is well taken. Our reasons for so considering it shall be briefly stated. The right to appeal, and the power of this Court to award appeals and writs of error, is founded in statute. Parties must rest their right there, and there this Court must find its power. We cannot go beyond the plain terms of the statute in awarding appeals and writs of error. We are confined to the limits there prescribed. In order that one may appeal to this Court he must have been a party to the controversy in the circuit court. By -statute this -proposition is clear. Code 1906, chapter 135, section 1, provides: "A party to a controversy in any circuit court may obtain from the supreme court of appeals, or a judge thereof in vacation, an appeal from, or writ of error to, a judgment, decree or order of such circuit court in the following cases: “ * * * Again, section 2 says: “Any person who is a party to such controversy, wishing to obtain a writ of error, appeal or supersedeas in the cases named in the first section of this chapter, may present a petition therefor tó the supreme court of 'appeals, or to a judge thereof in vacation.” These sections are the only legal rules giving the right of appeal to this Court, or vesting in it the power to award appeals and writs of error. Bach of them limits the right to .a party who was in the controversy in the court below. And only in behalf of a party to the controversy there can we exercise the power. No one can appeal unless he has been an actual litigant in the cause below, or stands in "the place of a party as a legal rep [758] resentative. A party cannot come into the cause after it is ended below and obtain an appeal. Plainly the statute so prescribes. Judge GREEN discussed this subject in Williamson v. Rays, 25 W. Va. 609. Therein he says: “It is well settled that a person who is not a party to the proceédings in the court below, in which the judgment complained of was rendered, cannot obtain a writ of error from this Court to the judgment of the court below. The statute, which gives the right to obtain a writ of error from this Court, is thus worded: ‘A party to a controversy in any circuit court may obtain from the supreme court of appeals a writ of error to a judgment of such circuit court in the following cases/ (specifying them). Acts of 1882, chapter 157, section 1. It would hardly seem necessary to cite authorities to sustain the proposition above laid down. But plain as is the language of our present statute and of all others granting the court of appeals the power to grant writs of error, yet it has been frequently necessary to dismiss writs of error because they had been awarded to persons, who though interested in the judgment of the court below were not parties to the controversy. It is true that the party entitled to writ of error need not have been originally a party to the controversy, when the proceeding was first instituted in the court below. It is sufficient that he becomes a party to the controversy at any time during the progress of the case below.” Now, the Knoxes were not parties to the cause in the court below. They had nothing to do with it there. They did'not even seek to become parties to the cause while it was pending in the circuit court. True, they were indirectly interested in the result of the suit. A decree against Wade may mean that they are liable to him on their covenants of general warranty. But, though interested to that extent, the statute excludes them from the right to appeal. Coleman v. Oil Co., 25 W. Va. 148; Stout v. Philippi M. & M. Co., 41 W. Va. 339; and other cases. Let us quote from 1 Robinson’s Practice (old), at page 656 and 657: “The person petitioning must be a party appearing by the record to be aggrieved. Where the judgment complained of is rendered in an action at law, and a supersedeas is awarded to a person against whom no judgment was in fact obtained, such super759 sedeas will be quashed. Moss &c. v. Moss's admr., 4 H. & M. 314. The case of Halcombe v. Purnell, &c., decided May 6, 1802, is a- strong one upon this head. In that case the court held that a principal obligor in a forthcoming bond, against whom the judgment in the original suit was rendered, but against whom no judgment was rendered on the forthcoming bond, was not entitled to appeal from a -judgment against the surety in the forthcoming bond. Upon the face of the record it must haye appeared that the principal obligor was collaterally interested, since the surety would be entitled to recover of him the amount of the judgment whenever the surety should discharge the same; but not being immediately a party to the judgment, the court dismissed the appeal. See this case mentioned by Tucker, J., in Sayre, admr. of Grymes v. Grymes, 1 H. & M. 406. The two circumstances, that the petitioner is interested in reversing the judgment and that he is a party to the record, must be combined. If a person obtain a supersedeas to an order, and it does not appear by the record that he has any interest in the question, the supersedeas will be quashed. Sayre admr. of Grymes v. Grymes, 1 H. & M. 404. And although a person may be interested, unless the record shows that he was a party to the proceedings in the court below, he cannot obtain a supersedeas. Wingfield v. Crenshaw, 3 H. & M. 245. See, also, Dunlop v. Commonwealth, 2 Call, 284.” The appeal and supersedeas, awarded M. G and Harry D. Enox, who were not parties below, will be dismissed as improvidently awarded. Dismissed.