80 Va. 163 | Va. | 1885
delivered the opinion of the court.
This is an appeal from and supersedeas to a decretal order of the circuit court of Richmond city, entered December 24th, 1884, in a suit therein depending between the appellant, Edwin Parsons, and the Commonwealth of Virginia. On the 22nd December, 1884, Edwin Parsons, the Appellant, filed his petition in the said circuit court of the city of Richmond,
In response to this petition, the said circuit court, on the 22d December, 1884, issued “a summons to the Commonwealth of Virginia, and to Morton Marye, Auditor of the Commonwealth of Virginia, .to appear, on the 1st Monday of February, 1885, and answer said petition, and show cause, if any he can, why the prayer thereof should not be granted, and why judgment should not be entered in his behalf, against the Commonwealth of Virginia, for the sum of $24,000, with interest as demanded.”
On the 24th day of December, 1884, before any appearance for any of the defendants, the court, of its own'motion, “ordered, that the order herein entered upon the 22d of December, 1884, be' set aside; and, upon consideration of the petition, heretofore filed, this court being without jurisdiction to entertain any suit against the Commonwealth of Virginia, it is ordered that the said petition, as to the Commonwealth of Virginia, be dismissed. And, it is further “ ordered that Morton Marye, Auditor of the Commonwealth of Virginia, do file his answer to said petition, on or before the first Monday of February, 1885, and show cause, if any he can, why the prayer ot the petition should not be granted.”
From this last mentioned order in the cause by the circuit court, this appeal is taken. The question presented by the record, seems to be more of mere form than of importance;
On page 637 of 25 Gratt., Judge Bouldin, for the court, in Higginbotham v. The Commonwealth, supra, said “ My opinion is, that under the statutes of the State, she is liable to he sued in this case, by petition against the Auditor, and that judgment should have been rendered against her. I do not mean to intimate that a State can be sued, in any case, either by her own citizens, or by others, in her own courts, without her authority aud against her consent. But it has ¿ver been the cherished policy of Yii’ginia, to allow to her citizens and others the largest liberty of suit against- herself; and there never has been a moment since October 1778, (but two years and three months after she became an independent State,) that all persons have not enjoyed this right by express statute.”
The petition filed in this case, is under the 44th chapter of the Code of 1873, whose sections from 1 to 6, inclusive, set out the mode of procedure to recover claims against the State; and the order of the circuit court of the city of Richmond, complained of, is a mere matter of pleading or procedure; for it still entertains the catxse as it is made in the petition, and upon proper and sufficient proofs, judgment can be rendered against the Commonwealth for the debt claimed. The State has, by statute, allowed herself to be sued in her own court, to-wit: the circuit court of the city of Richmond; but this, sub modo, “in every such case the said Auditor of Public Accounts, shall be a defendant. He shall file an answer stating the objections to the claim; and the cause shall be heard, without any unnec
The order of the circuit court in this case, may have been unnecessary, or, under the first and amended order in the procedure, the judgment of the court would have been exactly the same; yet it has not affected the right or the remedy of the appellant, and he has no cause for appeal. The judgment or order complained of is affirmed.
.Judgment aeeirmed.
