30 W. Va. 107 | W. Va. | 1887
Lead Opinion
To the foregoing judgment, four grounds of error are assigned, — (1.) In overruling the demurrer to the declaration. (2.) In rendering against the defendants the judgment of $1,000. (3.) In overruling their motion to continue the cause as to said $1,000. (4.) In rendering judgment without evidence upon inspection of the declaration and statement of set-offs, and affidavit of the defendant Hays.
The first question presented for consideration is whether this Court has jurisdiction to review by writ of error the judgment complained of. If this judgment is not a final judgment, within the meaning of the first clause of the first section of chapter 135 of the Code, tins writ of error must be dismissed as having been improvidently awarded, although the defendant in error has neither suggested nor argued such objection. So much of said chapter as affects the question of jurisdiction in this case, is as follows: “A party to a con
To me it seems perfectly clear that the sole purpose of this enactment was to change the common law, so that in all actions where, but for such plea or account of sets-off, the plaintiff would be entitled to a judgment for specific personal property, or for a certain sum of money, it should thenceforth be lawful for the plaintiff to demand, and for the court to render in his favor, a judgment for such part of his claim or demand as the defendant by his plea or account had failed to controvert, and thus place the same beyond all controversy, in the same manner, and to the same extent, as if it had never been included therein; and I am unable to conceive how this purpose could have been more clearly expressed, than by the terms used in this section of the statute.
This judgment, so rendered for the uncontroverted part of the plaintiffs demand, bears no analogy to the judgment entered upon the acknowledgment of one of the defendants, jointly bound with other defendants, who still continue to resist the plaintiffs demand; for, as I have already shown, such a judgment is in fact no judgment, for it possessed neither conclusive'ness nor finality, for it was liable to be diminished or wholly set aside, by the result of the trial of the issues with the other defendants. But, under the provisions of section 8 of chapter 126; the judgment so rendered
To the plaintiff’s action appear to have been pleaded three pleas,viz.: “dYon damnificatusj'' “conditions performed,” and “payment,” accompanied with a specification of the several items of payment and sets-off which they desired, to prove on the trial, but it does not appear that any of them was verified by affidavit, as required in certain cases specified in section 8 of chapter 126 of the Code. The pleas themselves, are not set out in the record, but as they were neither demurred to, nor otherwise objected to, and as issues were joined on all of them, we must presume they were in proper form.
The plea of “ non damnifieatus,” if it had been objected to, would have been rejected, as it presented no ground of defense to the action, as the condition of the official bond of the sheriff on which the action was founded was in no proper sense a bond of indemnity.
The plea of “ payment,” which inform was an answer to the whole declaration, was, in effect, by the specification of par’ tial payments and sets-off accompanying it, narrowed down to an amount less than one third of the sums in the declaration demanded.
The plea of “ conditions performed ” was also an answer to the whole declaration, and controverted the plaintiff’s right to any recovery whatever. It was in effect an averment, that Samuel L. Hays had accounted for, and paid over to, the said County Court of Gilmer county, all moneys collected by him for its use, or for which as such sheriff he was in any manner liable, While jt is true that the plea qf conditions
It is insisted in argument by the counsel for the plaintiff in error, that the court had erred in overruling his motion for a continuance of the cause as to the $1,000, — which was uncontroverted by his plea of payment and the specifications of payments and sets-oif filed with it. The continuance was asked for upon the sole ground, that defendant’s counsel was absent, but, so far as this record shows, no reason was disclosed why he was not present, or that, if he had been present the defendants desired to further controvert the said $1,000. The mere absence of counsel, except under special circumstances, such as that he has suddenly been taken ill, or that he has met with some accident, or that he is necessarily absent in the public service, and has thereby been prevented from attending the court, affords no ground for a continuance. But if their counsel had been present, the defendants would not have been entitled to a continuance of the cause as to the $1,000, except for good cause shown, because the plea of conditions performed, which controverted the plaintiff’s whole cause of action, had not been verified by affidavit as required by section 8 of chapter 128 of the Code. The Circuit Court therefore did not err in refusing to continue the cause as to the sum of $1,000, for which it gave judgment.
Did the court err in overruling the demurrer to the declaration % By chapter 39 of the Code, § 32, the sheriff is declared to be “ ex-oMoio treasurer of the county, and all money collected or received for the use of the county or districts shall be paid to the sheriff to be kept and disbursed by him for county and district purposes, under the regulations pre-cribed by law.” By section 34 the sheriff is required, at the end of every fiscal year, to render to the County Court of his county, whether especially requested or not, a full statement of his account for that fiscal year, showing the balance due by or to him at the commencement of the account, the amount collected during the year, and from what sources, and the
Similar provisions are found in section 46 of chapter 45 of the Code, in regard to the collection and disbursement of school moneys by the sheriff on behalf of boards of education. The board of education of St. George district, in the •county of Tucker, having settled with Parsons, the outgoing sheriff, and ascertained that large amounts of school moneys belonging to it remained in his hands, by an order entered upon the record of its proceedings, signed by its president and secretary, directed him to pay the same to his successor in office, A. 0. Minear, then sheriff of that county, and caused a certified copy of said order to be delivered to Parsons, but did not draw any order upon him directing him to pay the same to Minear. Failing to pay the money as directed, the board of education proceeded against Parsons, and his sureties, as sheriff, by motions to enforce payment of the money remaining in his hands. After setting forth every other necessary fact, the motions particularly recited and set out the adoption by the board, and the entry on its records, of the said order directing Parsons to pay over said moneys to Minear, and the delivery to Parsons of a certified copy of said order,
It will be perceived that the right of the plaintiff to maintain its motions rested upon the fact that the board of education, by its order entered of record, signed by its president and secretary, a certified copy of which had been delivered ¡to him, had directed Parsons to pay said moneys to Minear, the then sheriff' of the county. That this Court in the absence of such averment in the notice would hold the same as insufficient. to warrant a judgment thereon against the sheriff, clearly appears by its decision in the case of Board, etc., v. Parsons, 22 W. Va. 580. This was a motion by the board of education of Licking district, in Tucker county, against Parsons and his sureties for school moneys due that district-. The notice in this case was in all respects like the notices in the former cases, except that it wholly failed to show that any order had been made upon its books, or drawn by the board, directing Parsons to pay over the money, or that any demand had ever been made upon him for the payment thereof. The absence of such averment rendered the notice fatally defective, and this Court accordingly held, that “ a notice toan
From what we have already seen, the duties of the sheriff, as the treasurer of the county, in respeet to all moneys collected by him for the use of the county, are precisely similar, in every material respect, to those imposed upon him in regard to the collection and disbursement of school moneys. He is expressly forbidden to pay out any money belonging to the county, except upon the order of the County Court of -such county, signed by its preisdent and clerk, except upon a judgment or decree as provided in the forty second section of chapter 39 of the Code. Until such order, or some •other order, has been made by the County Court,signed by its president and clerk, directing'such outgoing, or ex-sheriff to pay the money in his hands to his successoY in office, or to some other person, and notiee thereof given him, such outgoing or ex-sheriff has not made default in not paying over ■said money, for he is entitled to such order to authorize him •to pay over the money to his successor in office, and to protect him in doing so; and until such order has been made and notice thereof given to him, no action can be' maintained •against him for failing to pay over such money.
The same reasons which controlled the judgment of this "Court in the ease last cited, 22 W. Va. 580, supra, are conclusive in the case in judgment. The declaration contains no •averment whatever that the County Court of Gilmer county by any order entered of record, or by any draft drawn by its order, signed by its president and clerk, or by any
The judgment of the Circuit Court is reversed, with cost to the plaintiff in error. And this Court now proceeding to render such judgment as the Circuit Court should have rendered, it is considered that the defendants’ demurrer to the declaration be, and the same is hereby, sustained, and leave is given the plaintiff to amend its declaration, if it is able and desires to do so; and this cause is remanded for further proceedings.
Concurrence Opinion
I concur in the preceding opinion and the syllabus thereto except so much of the opinion as relates to the jurisdiction of this Court. I think the writ of error was prematurely awarded in this case, and that this Court has no authority to entertain it. I will briefly state my views on this .question.
All judgments and decrees are either final or interlocutory. Final judgments or decrees are such as at once put an end to the action or suit. They are the ultimate and final adjustment of the whole matters in controversy, and put the parties out of court. A verdict, and judgment in favor of all the defendants except one, in a joint action of trespass, is not a final judgment, and no writ of error will lie from it until the action has been abated, dismissed, or decided as to that one defendant. Wells v. Jackson, 3 Munf. 458. See, also, Manlove v. Thrift, 5 Munf. 493. A judgment for the plaintiff upon a plea in abatement, where leave is given the defendant to answer over, respondent ouster, is ah interlocutory judgment, and such are all judgments that do not fully determine the controversy, and put the parties out of court. 3 Bl. Comm. 397; 2 Bouv. Law Diet. “Judgment;” Co. Lilt.
It will be seen from an examination of the numerous cle-cisions of this Court on the subject of the finality of decrees, in reference to appeals, bills of review, etc., that they have all been founded ujjon the idea that a decree is not final, unless the cause itself has been thereby terminated in the court beloio. Thus, though a decree decides upon the question of title, or otherwise settles the principles of the cause, (Young v. Shipwith, 2 Wash. Va. 300; Grymes v. Pendleton, 1 Call 54; McCall v. Peachy, Id. 55; Bowyer v. Lewis, 1 Hen. & M. 553;) though it dismisses the plaintiff’s bill as to one of two separate subjects of controversy, and as to the other also determines the rights of the parties, (Templeman v. Steptoe 1 Munf. 339;) though a decree nisi directs that the tract of land in the bill mentioned be surveyed, and a part thereof allotted to the plaintiff, and that the defendant shall execute to him a conveyance for such part, and pay the cqsts of the
The case at bar comes within none of these exceptions, and must therefore of necessity come under the general provision of the statute, which authorizes a writ of error only after there has been a final judgment. The judgment here is certainly not final; for, as we have seen, a final judgment or decree (and there is no difference between a judgment and a decree, in respect to the question of finality,) is one which leaves nothing to be done by the court in the case, and puts the parties out of court. Here the parties are not only not put out of court, but the controversy is continued in the court, between the same parties. There can not be two final judgments in the same action between the same identical parties, — such a thing is a legal solecism. It is certain, that when the controversy, still pending between the parties in the Circuit Court, is ultimately determined, the result will necessarily be a final judgment; therefore, if the judgment from which this writ of error is taken is also final, then we have the impossible result of two final judgments, between the same parties, in the same action.
It is altogether foreign to the subject to refer to the common law in respect to the jurisdiction of this Court. Our jurisdiction is wholly statutory, and no appeal or writ of error can be entertained by this Court, unless the same is
For the reasons thus briefly stated, I am of opinion, that this Court has no jurisdiction to entertain this writ of error, and that the same should be dismissed as having been prematurely and improvidenly awarded. I am- authorized to add, that Judge Green concurs in these views and this conclusion. But since the Court is equally divided on the question of jurisdiction, the writ of error can not be dismissed, but the judgment of the Circuit Court must be reversed for the reasons stated in the opinion of Judge Woods.
REVERSED.