Bell v. Parmville & P. R. Co.1

• Decision Date: 07 February 1895
• Citation: 20 S.E. 942,91 Va. 99
• Court: Virginia Supreme Court
• Parties: BELL et al. v. PARMVILLE & P. R. CO.1

20 S.E. 942

91 Va. 99

BELL et al.

v.PARMVILLE & P. R. CO.¹

Supreme Court of Appeals of Virginia.

Feb. 7, 1895.

Change of Venue — Waiver of Irregularities —Municipal Aid to Railroads—Curative Act.

1. Where a cause is removed from the circuit court of one county to that of another, and the parties appear in the latter court and contest the matter, jurisdiction is thereby acquired, although the clerks of both courts failed to make note of the order of removal, as provided by section 3318, Code 1887.

2. Where a cause is removed from one county to another, papers filed in the first county before removal are a part of the record in the case.

3. The legislature may authorize a county or municipality to subscribe to the stock of a railroad company, and to issue bonds to pay for it; and, if the conditions precedent to the exercise of such power have not been complied with, the legislature can cure all irregularities by subsequent legislation.

4. Acts 1887-88, p. 128, recited that C. and P. counties had subscribed for stock in a certain railroad, and paid the subscription in conditional bonds, as previously authorized by law, and enacted that upon completion of the railroad the conditional bonds should, in the discretion of the boards of supervisors of said counties, be exchanged for coupon bonds, stating that the sum due was for value received, and that on the delivery of said coupon bonds certificates of stock should he handed over to the said counties. Said coupon bonds were never exchanged as above by the supervisors. Held, that by said act all irregularities and defects in the proceedings and election by which said conditional bonds were authorized were cured. Harrison, J., dissenting.

Appeal from circuit court of city of Petersburg; B. A. Hancock, Judge.

This was a proceeding by William Flanagan and Robert Bell to enjoin the enforcement of certain bonds issued by Powhatan county In aid of the Farmville & Powhatan Railroad Company, and from a decree declaring said bonds valid an appeal is taken. Affirmed.

Wm. M. Flanagan and E. P. Buford, for appellants.

Pegram & Stringfellow, for appellee.

BUCHANAN, J. The first assignment of error in this case is that the circuit court of the city of Petersburg, which entered thedecree appealed from, had no jurisdiction of the case. It appears from the record, that the suit was brought in the circuit court of Powhatan county by the appellants, William Flanagan and Robert Bell, citizens and taxpayers of that county, for the benefit of themselves and other taxpayers, against the Farmville & Powhatan Railroad Company and the board of supervisors of that county, to enjoin the railroad company from asserting and exercising any rights under an alleged subscription of $40,000, made by that county to the railroad company, and to restrain the board of supervisors from levying taxes to pay the bonds Issued to pay such subscription, to set aside and annul the same, and for general relief. After the cause had been pending in that court from January, 1891, to April, 1892, during which time the bill and amended bill, petitions, demurrers, and answers had been filed, the case was removed to the circuit court for Chesterfield county, because the judge was so situated that in his judgment it was improper for him to try the cause. In December of that year, by consent of parties, the cause was removed from the circuit court of Chesterfield county to the circuit court of the city of Petersburg. The papers copied into the record show these facts. But the cleric of the circuit court of Powhatan county failed to make and certify copies of the rules and orders made in his court in the case before its removal to Chesterfield county, as required by section 3318 of the Code. The clerk of the circuit court of Chesterfield was guilty of the same negligence when the case was removed from his court to the circuit court of the city of Petersburg. It is contended by the counsel of appellants that, since the suit was brought in the circuit court of Powhatan county, and there is no record evidence of its removal to the circuit court of the city of Petersburg, the last-named court had no jurisdiction of the case. If there had been no appearance in the case in that court by the party raising the objection to its jurisdiction, it might present a question of some difficulty. But the appellants here (the complainants in the court below) consented to the docketing of the case in that court, and the following order was entered at its December term, 1892: "This cause, which was removed to this court from the circuit court of Chesterfield county, was this day docketed in this court by consent of the parties by counsel; and thereupon, on motion of the plaintiffs by counsel, leave is given them to file their supplemental and amended bill No. 2, which is accordingly filed." The case was then proceeded in to a final decree, without objection upon the part of any one. The circuit court of Petersburg had general jurisdiction of the class of cases to which this case belongs, and by consenting that this case might be docketed and proceeded in in that court the appellants waived all right to object to its jurisdiction, even though there had never been any order removing the case from the circuit court of Powhatan county. The mere fact of a party taking and agreeing to a continuance is evidence of his having made himself a party to the record, and of his having recognized the ease as in court. It is too late afterwards for him to say that he has not been regularly brought into court. Harvey v. Skipwith, 16 Grat. 415. If other authority were required for a proposition of law so plain, it will be found in a decision of this court in the case of McAlexander v. Hairston, reported in 10 Leigh, 486. There an action of slander was instituted in the circuit superior court of law and chancery for Floyd county. The judge of that court, being so situated that he could not try the case, removed it, after the issues had been made, to the county court of the county. Trial was had in that court, and a judgment rendered. Upon a writ of error the circuit superior court of Montgomery county reversed it, on the ground that the county court had no jurisdiction of the case; but upon a writ of error to this court the judgment of the circuit court was reversed, and that of the county court affirmed. In delivering the opinion of this court in that case, Judge Stanard said: "Without deciding, or even considering, the question whether the order of the superior court made by consent of the parties, removing the case to the county court for trial, would proprio vigore place the case, in its then condition, in the county court for trial, * * * I am of opinion that parties may, by consent, make up the pleadings and issue in a case, and have it docketed in any court having jurisdiction for the trial of such a case; that over a case so docketed, on the parties appearing before the court in which it may be so docketed, making no objection to the regularity of the docketing of it, that court may exercise jurisdiction; and that the objection to the jurisdiction of the court, coming for the first time after the trial and judgment in the case, cannot be sustained."

The appellants insist further, if it be held that the circuit court of the city of Petersburg had jurisdiction of the case, the papers filed in the case before it was docketed in that court cannot be considered as parts of the record. This view cannot be sustained. The whole record as copied was before the circuit court when it decided the case. This is shown by the proceedings had and pleadings filed in the circuit court of the city of Petersburg. In the second amended and supplemental bill, filed in the case after it was docketed in that court, the statement is made that the original bill was then pending in that court. The final decree in the case dissolves the injunction granted in the case, and dismisses the original and amended and supplemental bills. These bills, with all the other pleadings, and the proofs taken in the case, must, therefore, have been before the court when that decreewas entered. It is not to be presumed that counsel would argue and the court decide a case in the absence of these papers, when the record shows as a matter of fact that all of the papers were then in that court.

Another ground of objection relied upon by the appellants is that the bonds issued by the county of Powhatan in payment of its stock subscription to the railroad company are invalid because of numerous irregularities attending the election authorizing their issue. Among the more important of these are the allegations that the order of the county court directing the election was irregular and void; that no legal notice was given of the election; that the election itself was irregular and illegal; that the meetings of the board of supervisors appointing commissioners to make the subscription of stock to the railroad company, and also their meetings directing the bonds to be issued, were illegal; and that the bonds issued are payable at a different date from that provided by the statute authorizing their issue. The record shows that the election whose validity is in question was held on the 7th day of August, 1886; that the stock subscription was made on the 5th day of September of that year; that the bonds were issued by the board of supervisors, and delivered to the railroad company, on the 14th day of October, 1887, and were turned over by that company to the Bermuda Construction Company on account of what the railroad company owed that company for building the railroad; and that the construction company disposed of them to various holders. The holders of the bonds, who are parties to this suit, claim that they are bona fide purchasers for value, and that, although the proceedings had prior to their issue, and which were conditions precedent, may have been irregular, or even in violation of the law which...