Lead Opinion
Thе question attempted to be certified by the judge of the circuit court of his own motion, pursuant to seсtion 1, chapter 135, Code of West Virginia, 1916, is whether the bill is bad upon any of the numerous grounds certified.
This question, so far as the record shows, was not passed upon by the circuit court, or by the judge thereof, otherwise than by a vacation order, made in chambers on November 10th, 1917, on bill and exhibits, without other pleadings, but reciting appearance by and arguments of counsel for plaintiff and defendants, and awarding the injunctiоn prayed for until the further order of the court, the same not to take effect except upon the plaintiff giving the bond prescribed in the order. No demurrer to the bill was interposed. One might have been tеndered perhaps, but could not have been then actually filed and disposed of for the proсeeding was in vacation and not in term. Section 12, of chapter 133, of our Code, as interpreted, givеs right to a defendant, on motion made in vacation to dissolve an injunction, to present his verified answеr, to be treated as an affidavit, but this is as far as our decisions go. Goddin v. Vaughn, 14 Grat. 102; Hayzlett v. McMillan,
A question not presented by counsel in briefs or oral argument, but which we must raise and answer for ourselves, is one of jurisdiction. Does section 1, of chapter 135, of the Code, give us jurisdiction to dispose of the sufficiency of a bill upon the certificаte of the judge, after the award of a preliminary injunction in vacation, as proposed in this cаse ? We think not. The provision of the statute is: “Any question arising upon the sufficiency of a summons or return of serviсe, or challenge of'the sufficiency of a pleading, in any case within the appellate jurisdiction of the supreme court of appeals, may, in the discretion of the court in which it arises,
Generally оur jurisdiction is limited by statute to 'final judgments and decrees of the circuit courts. This provision of the statute was enacted, however, as an aid to the prompt and economical administration of justice, but as interpreted by section 5, of rule 1, of this court, it presupposes court action, and when involving the suffiсiency of pleadings, the filing of pleas competent to put the question certified in issue and the previous judgment of the circuit court thereon, and this requirement in our opinion is not satisfied by orders or proceedings had in vacation. The statute says, the court in which it ai’ises shall certify the question, not the judge in vacation, and the form of certificate prescribed by the rule of this court presupposes court action, not the vacation order of the judge.
True, said section 1, of chapter 135, provides for appeals from decrees_or orders dissolving or refusing to dissolve injunctions, but the case presented is not one of appeal and the statute does not give an appeal from an оrder awarding, but only from one on motion dissolving or refusing to dissolve an injunction. Goff v. Goff,
Wherefore, as there has been no decree or order of the circuit court upon any plea competent to рut hi issue the sufficiency of the bill, we must for want of jurisdiction decline at this time to respond to the questions cеrtified.
Concurrence Opinion
(concurring):
1 agree that we have no jurisdiction of the question certified. If the action of the court upоn the bill had occurred in term, instead of in vacation, the result would be the same. The statute does not сontemplate review, on a certificate, of the award or denial of relief on pleаdings, either interlocutory or final. It goes to sufficiency of process and pleadings only. There should have been a demurrer to the bill and a ruling upon it. The ruling upon the application for the injunction only inсidentally involved sufficiency of the bill. A bill might
Response to questions certified declined for .want of jurisdiction.