Brown v. Gates

• Decision Date: 10 May 1879
• Citation: 15 W.Va. 131
• Parties: BROWN v. GATES, TREASURER & c.
• Court: West Virginia Supreme Court

15 W.Va. 131

BROWN v. GATES, TREASURER & c.

Supreme Court of West Virginia.

May 10, 1879

1. A writ of fieri facias may issue under provisions of the Code of 1868 of this State against a political public municipal corporation upon a judgment for a debt or damages rendered by a court of competent jurisdiction in this State.

2. But by implication the taxes and public revenues of such corporation are exempt from the operation of the provisions of the 5th section of chapter 140 of said Code, and the 2d and 10th sections of chapter 141 of said Code; and such taxes and revenues cannot be seized or subjected to a writ of fieri facias in the hands of the tax-payers or in the treasury of such municipal corporation or in transit to such treasury, by virtue of said writ or by reason of any lien of such fieri facias under the said 5th section of said chapter 140, or the said 2d or 10th sections of said chapter 141. Especially should such exemption he held to exist in the absence of an express declaration of law to the contrary.

3. It seems that such a corporation may sometimes own some descriptions of property strictly private or interests in such property, or have debts of a strictly private nature due to it, which are subject to levy and to the lien of such writ of fieri facias. But perhaps property charged with public trusts, or owned or used by such corporation for public purposes, such as fire-engines & c. are not subject to levy, or to the lien of a fieri facias, upon the same principle that the taxes and revenues of such corporation are not subject to the levy or lien of a fieri facias; but as that question is not involved in this case, it is not now decided

4. Statutes are sometimes extended to cases not within the letter of them; and cases are sometimes excluded from the operation of statutes, though within the letter; on the principle that what is within the intention of the makers of the statute is within the statute, though not within the letter; and that what is not within the intention of the makers is not within the statute; it being an acknowledged rule in the construction of statutes, that the intention of the makers ought to be regarded.

Writ of error and supersedeas to a judgment of the circuit court of Kanawha county, rendered on the 27th day of June 1878, in an action in said court then pending, wherein James F. Brown was plaintiff and A. P. Gates, treasurer & c was defendant, allowed upon the petition of said Brown.

Hon Joseph Smith, judge of the seventh judicial circuit, rendered the judgment complained of.

The facts of the case are fully stated in the opinion of the Court.

W A. McCorkle and J. H. Brown, for plaintiff in error, cited the following authorities:

Code ch. 140, §1; 1 Rev. Code of Va. 473; 1 Minor Inst. 41; 2 Va Cas. 143; 11 Gratt. 242; 21 Gratt, 695; Code ch. 52; Id. ch. 53; Id. ch. 124 §7; Id. ch. 41; 12 Gratt. 663; 2 Inst. 697, 703, 736; 1 Pet. 102, 134, 135; 1 Rob. 573; Code, ch. 16, §17; 27 Gratt. 110; 18 Gratt. 221; Acts 1872-3, ch. 114, §§2, 60, 61; Id. ch. 123; Va. L. J. 709; 33 Ala. 69; 15 Ohio St. 462; 20 Conn. 415; 4 Iowa 302; 9 W.Va. 522; Code, ch. 13, §17; Id. ch. 50, §124.

Smith & Knight, for defendants in error, relied on the following authorities:

Dillon Mun. Corp. §§64, 65, 446, 686, 693 notes and authorities cited; Id. §9, b.; Acts 1875, ch. 39, §§21, 22, 23, 34; Abb. Dig. Law of Corp. p. 496, No. 143 and cases cited; 6 Hill 531; 5 Abb. Pr. 104, 268; 7 Abb. Pr. 248.

OPINION

HAYMOND JUDGE.

James F. Brown obtained a judgment against the City of Charleston, in the circuit court of Kanawha county, for the sum of $469.20, with legal interest thereon from the 24th day of November, 1876, until paid, and also for costs of suit. Afterwards, on the 1st day of May, 1878, the plaintiff (Brown) caused a writ of fieri fiacias to be issued out of the clerk's office of said court by the clerk thereof upon said judgment for the amount thereof of debt and $18.40 costs of the suit, against the goods and chattels of said City of Charleston. The writ of fieri facias was made returnable to rules in said clerk's office on the 1st Monday of July, 1878, and was directed to the sheriff of Kanawha county, in which the City of Charleston is situate, and placed in the hands of such sheriff to be executed on the said 1st day of May, 1878. On the day and year last aforesaid, the plaintiff filed his suggestion in writing in the clerk's office of said circuit court, under the provisions of the 10th section of chapter 141 of the Code of this State of 1868, suggesting " that there is a liability by reason of the lien of said" writ of fieri facias upon A. P. Gates, treasurer of said city, of said county. And on the day and year last aforesaid, the clerk of said court issued a summons against said " Gates, treasurer of said city," to appear before said circuit court on the 1st day of the next term thereof, to answer said suggestion. Afterwards, at a term of said circuit court held on the 15th day of May, 1878, the said Gates, treasurer, & c., tendered in court his answer in writing to said suggestion verified by affidavit, which answer is as follows:

" STATE OF WEST VIRGINIA, COUNTY OF KANAWHA, TO-WIT:

A. P. Gates this day personally appeared before me in my said county, and made oath that he is the treasurer of the City of Charleston; that as such treasurer he has in his hands the sum of $350.00 belonging to said city, and no more; that he had said sum in his hands when said suggestion was served upon him at the suit of J. F. Brown, and that was all that he had in his hands belonging to said City of Charleston, and was his whole liability to said city as the treasurer thereof at the time of the service of said suggestion; that said money was paid into his hands by the city sergeant of said city from taxes collected by him, the said sergeant, assessed upon the citizens and property of said city, and affiant is not, and was not at the time said suggestion was served, indebted or liable to said City of Charleston in any other way or for any other amount than as before stated as treasurer of said city.

Given under my hand, this 14th day of May, 1878.

EDWARD B. KNIGHT,

Notary Public for Kanawha County, W. Va. "

The said writ of fieri facias was in the hands of the sheriff of said county in full force, when the summons to answer the suggestion was served on said Gates. On the 27th day of June, 1878, at a term of said court, came the plaintiff, by his attorney, and the defendant, A. P. Gates, and the City of Charleston, by their attorney; and the court, after hearing the answer of said A. P. Gates to said suggestion and the other evidence in the cause was of opinion that there is no liability in favor of the plaintiff upon the said A. P. Gates by reason of the plaintiff's execution against the City of Charleston and the suggestion aforesaid, and dismissed the said suggestion at the cost of plaintiff therein.

It appears that on the trial of the cause the plaintiff tendered a bill of exceptions to the opinion and judgment of the court, which was signed, sealed and saved to him and made a part of the record. By which bill of exceptions it appears that on the trial the plaintiff to sustain his case offered in evidence the suggestion aforesaid and summons thereon issued by the clerk as aforesaid, also the writ of fieri facias aforesaid, recited in said suggestion, with the endorsement on said writ. I have already stated so much of said suggestion, summons issued thereon and also of said fieri facias as is material to be stated; but the endorsement on the writ of fieri facias is " no property found," which is signed by the sheriff of said county.

It also appears that the plaintiff proved that the said writ of fieri facias was in full force and in the hands of the sheriff of Kanawha county to be executed, when said suggestion was served on the said garnishee, A. P. Gates, viz: on the 1st day of May, 1878, in the said county; that the plaintiff also read in evidence a written statement of facts agreed, which statement is signed by the counsel for the respective parties, and is as follows: " JAMES F. BROWN v. A. P. GATES, treasurer & c, on suggestion as debtor of the City of Charleston.

It is hereby conceded and agreed by all the parties to this suit, that the judgment recited in the suggestion in this matter was obtained upon twenty coupons for interest respectively on twenty several bonds of the said City of Charleston, issued in the year 1872, each of said coupons being for interest due and payable August 1, 1876, upon said bonds respectively.

JAMES F. BROWN.

E. B. KNIGHT,

Solicitor for City of Charleston. "

It appears that the plaintiff also proved by the said A. P. Gates as follows:

" A. P. Gates sworn, says that as treasurer of said city, at time of service, he had in his hands of said city's money $350.00, which was paid him 25th February, 1878. Since that time there has been no funds come into his hands belonging to said city. There was at time of said service, as wharfmaster, money in his hands belonging to said city amounting to $140.00. Since said service he has received nothing as wharfmaster. The $350.00 above mentioned said Gates received from sergeant Rand, who is tax-collector for the city and city sergeant. Gates is wharfmaster for the city. The $140.00 was collected for wharfage in February, March and April, 1878," with the addition as agreed by the counsel for both sides, viz: " That it was the duty of said Gates, as such wharfmaster of the City of Charleston, to pay over the money received, by him as such wharfmaster to the treasurer of said City of Charleston, which treasurer he was during all the time he was such wharfmaster.

The defendants, the said City of...