Litz v. Rowe

117 Va. 752 | Va. | 1915

Kelly, J.

(after making the foregoing statement), delivered the opinion of the court.

We are of opinion that it was error to permit the appellants to file their petition, that the.court had no jurisdiction of the matters arising thereon, and that all proceedings thereunder were null and void. The objection to the fifing of the petition, and the demurrer thereto, were both good and should have been sustained.

The petition could not have had any other effect than that which it actually produced, namely, to. call into requisition the court’s judgment upon a dispute regarding the title and boundaries of land. That courts of equity are without jurisdiction to settle such a dispute, in the absence of some peculiar equity (not existing in this case) is perfectly well settled. Stuart Heirs v. Coalter, 4 Rand. (25 Va.) 74, 15 Am. Dec. 731; Lange v. Jones, 5 Leigh (32 Va.) 192; Carrington v. Otis, 4 Gratt. (45 Va.) 235; Steed v. Baker, 13 Gratt. (54 Va.) 380; Collins v. Sutton, 94 Va. 128, 26 S. E. 415; Sulphur Mines Co. v. Boswell, 94 Va. 480, 485, 27 S. E. 24; Calloway v. Webster, 98 Va. 790, 791, 37 S. E. 276; Deane v. Turner, 113 Va. 237, 74 S. E. 165; Freer v. Davis, 52 W. Va. 1, 43 S. E. 164, 59 L. R. A. 556, 94 Am. St. Rep. 895.

It is true that the appellants invoked the jurisdiction of the court, and that the appellees (after they had resisted the filing of the petition, however, and had entered a demurrer thereto) expressed in their answer a willingness to have the two tracts surveyed as prayed for in the petition. But this is a controversy which belongs exclusively to a court of law, and no acquiescence or consent could create a jurisdiction over it in equity. Merwin’s Eq., sec. 108, p. 59; Stuart’s Heirs v. Coalter, 4 Rand (25 Va.) 74, 79, 15 Am. Dec. 731; Boston Blower Co. v. Carmen Lumber Co., 94 Va. 94, 100, 26 S. E. 390; Freer v. Davis, supra.

In his Notes on Equity Jurisprudence, at p. 8, Prof. W. M. Lile says: “It is settled, save possibly in Masachusetts, that consent cannot confer jurisdiction—that is to say, if a suit which properly belongs to a court of law be brought in equity, even though the defendant make no objection, and be willing that equity shall adjudge the matter, the chancellor himself will take notice of the defect of jurisdiction and the cause will be dismissed.”

At section 105, page 56, of Merwin’s Equity, the author says: “In England and in the United States Supreme Court it is settled by^repeated decisions that this is an objection which cannot be waived, because it goes'to the jurisdiction, and the court is bound to take notice of it, sua sponte, although it is not presented in the pleadings nor even suggested orally by counsel.”

In Freer v. Davis, supra, the Supreme Court of Appeals of West Virginia, with striking relevancy to the present case, says: “While the court had no jurisdiction to pass upon the question of title, the error in doing so was induced by the plaintiffs themselves. They brought their suit in the wrong court. Can they now complain of the action of the court in adjudicating the cause, they having requested it? To permit them to do so has the semblance of allowing them to take advantage of their own wrong. In 3 Cycl. Law & Proc. 242, it is said that, in general, ‘the appellant or plaintiff in error will not be permitted to take advantage of errors which he himself committed, or invited or induced the trial court to commit, or which were the natural consequences of his own neglect or misconduct.’ But, in respect to jurisdiction, the same book says, at the same page: ‘While the authorities are in conflict, the better rule would seem to be that, as consent cannot confer jurisdiction, a plaintiff against whom judgment is rendered is not estopped to assert, upon appeal or error, that the court to which he resorted had no jurisdiction of the subject-matter of the suit or of the person of the defendant.’ There are a few cases which seem to oppose this latter view. Shellenbarger v. Biser, 5 Neb. 195; Lounsbury v. Catron, 8 Neb. 469, 1 N. W. 447; Bollong v. Bank, 26 Neb. 281, 41 N. W. 990, 3 L. R. A. 142, 18 Am. St. Rep. 781. But it is undoubtedly supported by the better and more numerous authorities. See Wildman v. Rider. 23 Conn. 172, where it is held to be immaterial how the want of jurisdiction is brought to the notice of the court; Telegraph Co. v. Taylor, 84 Ga. 408, 11 S. E. 396, 8 L. R. A. 189; Bell v. Fludd, 28 S. C. 313, 5 S. E. 810; Capron v. Van Noorden, 2 Cranch, 126, 2 L. Ed. 229; U. S. v. Huckabee, 16 Wall. 414, 21 L. Ed. 457. In Railroad Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. 510, 28 L. Ed. 462, it is held: ‘This court will, where no motion is made by either party, on its own motion, reverse a judgment for want of jurisdiction, not only in any case where it is shown negatively that jurisdiction does not exist, but even when it does not appear affirmatively that it does exist.’ Mr. Justice Matthews delivered the opinion of the court in that case, and in it he reviews numerous decisions of the court bearing upon the question. The following extract is deemed to be not only applicable to the question raised here, but also fairly conclusive of it: Tt is true that the plaintiffs below, against whose objection the error was committed, do not complain of being prejudiced by it; and it seems to be an anomaly and a hardship that the party at whose instance it was committed should be permitted to derive an advantage from it; but the rule, springing from the nature and limits of the judicial power of the United States, is inflexible, and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it. This rule was adopted in Capron v. Van Noorden, 2 Cranch, 126, 2 L. Ed. 229, decided in 1804, on the application of the party against whom it had been rendered in the circuit court, for want of the allegation of his own citizenship, which he ought to have made to establish the jurisdiction which he had invoked.’ ” See also, Jones & Ford v. Anderson, 7 Leigh (34 Va.) 308, 314; S. & W. Ry. Co. v. Commomwealth, 104 Va. 314, 316, 51 S. E. 824; Hanger v. Commomvealth, 107 Va. 872, 874, 60 S. E. 67; Minnesota v. Northern Securities Co. 194 U. S. 48, 24 Sup. Ct. 598, 48 L. Ed. 870, 877, and cases cited.

It is clear from the foregoing authorities that, even if the appellees had not resisted the filing of the petition and had not demurred thereto, raising the express jurisdictional question, the court was plainly without jurisdiction, and that its orders upon the petition were void.

This is not the case of a plaintiff coming in an irregular manner into a proper forum and seeking later to take advantage of errors committed at his instance or through his default or acquiescence. The difficulty here is that the proceedings were had in a forum having no jurisdiction of the subject matter. It is not contended that the provisions of Sec. 2562 of the Code, conferring on courts of equity jurisdiction to settle all questions of title that may arise in a partition of lands, have any application to the questions arising upon the petition in this case, and we are of opinion that if such contention were made, it could not be sustained.

This brings us to the question as to just what disposition should be made of the cause at its present stage.

It is to be observed that the appellants are only parties to the suit by reason of their petition. They are not affected by anything done in the cause before they intervened. No partition of the Moore tract was ever made, but the suit was regularly and properly on the docket and the court had jurisdiction to enter the decree of July 26, 1907, which left certain adjustments to'be made between some of the original parties to the suit. These adjustments cannot prejudice the rights of appellants and they cannot here complain of them. It follows, we think, that the decrees appealed from should be reversed, the petition of Geo. W. Litz, W. L. Dennis and Louisa S. Day dismissed, all proceedings thereon cancelled and annulled, and the cause remanded for further proceedings to be had therein not in conflict with the views expressed in this opinion.

The costs in this court, however, will be decreed against the appellants. The cause is brought here by them, and the appellees having prevailed on the issue out of chancery are not now complaining, but the reversal, though at their instance, is not upon any error assigned by them but upon an error which they invited and which was committed over the protest of the appellees. Clearly, therefore, the appellants are not the parties substantially prevailing, and they should be required to pay the costs on the appeal. See Freer v. Davis, and Railroad Co. v. Swan, cited above, in both of which cases the conclusion here reached upon the question of costs is approved.

Reversed.