Baler v. Alexander
| Decision Date | 15 March 1938 |
| Docket Number | (No. 8738) |
| Citation | 119 W.Va. 716 |
| Court | West Virginia Supreme Court |
| Parties | L. H. Baler v. A. S. Alexander, Judge |
Appeal and Error
Code, 58-5-29, providing that "the court from which any case may have come to the Supreme Court of Appeals shall enter the decision of the appellate court as its own", does not permit the decision of this court on appeal or writ of error to be limited or restricted in any manner whatsoever; and this court will, by mandamus, compel the entry of its decision as the decision of the court from which an appeal or writ of error has been prosecuted.
Original proceeding in mandamus by L. H. Baier against A. S. Alexander, Judge of the Court of Common Pleas of Kanawha County, to compel the respondent to enter upon its record, as its own, the decision of the Supreme Court of Appeals in a prior case, and to set aside decree of the respondent.
Writ awarded.
Mohler, Peters & Snyder, for relator.
Blue, Dayton & Campbell and Taylor & Taylor, for respondent.
By this proceeding in mandamus the petitioner seeks to compel the Court of Common Pleas of Kanawha County to enter upon its records, as its own, the decision of this court in the case of the W. F. Shawver Sons Company V. Board of Education, 117 W. Va. 531, 186 S.E. 307, as required by Code, 58-5-29; and to set aside a decree of said court entered in said cause, on the 31st day of December, 1937, in which is set out in extenso the order of this court giving effect to its decision, and making said decision its own; but in addition thereto, dismisses the cause on motion of the plaintiff and discharges a receiver appointed therein, and makes certain reservations as to the rights of interested parties which, petitioner contends, lessens the force and effect of the decision of this court, and operates, in effect, as a dismissal of the cause without prejudice. Petitioner contends that he is entitled to the full benefit of the decision of this court in said cause without reservation or limitations. A brief resume of the proceedings in the Shawver case may be necessary to clarify the issue presented here.
In the year 1930, one R. A. Sutler contracted with the Board of Education of Loudon District to construct a school building at Marmet, and, being required to execute a bond to secure the performance of his contract, furnished the Equitable Casualty and Surety Company as surety on said bond. L. H. Baier, the petitioner herein, entered into an indemnity agreement with said surety company, guaranteeing it against loss or damage by reason of the execution of said bone. Sutler, in proceeding with construction under his contract, purchased material and supplies from The W. F. Shawver Sons Company and others, the bills for which were not paid. He did not complete the contract, abandoned the same, and became a bankrupt. The surety company also became insolvent. Later, The W. F. Shawver Sons Company instituted its suit in the Court of Common Pleas of Kanawha County against the Board of Education of Loudon District, L. H. Baier and others, in which suit other persons furnishing material for said construction work became parties, seeking, among other things, to secure a decree against L. H. Baier for the payment of their claims under said indemnity agreement. In this suit, a receiver was appointed for the surety company, and by a final decree of the court below, entered on the 16th day of May, 1935, decretal judgments were entered in favor of Frank L. Taylor, special receiver for the surety company, for the use and benefit of the creditors of R. A. Sutler, and against L. H. Baier for the respective amounts due the various materialmen who had proven their claims in the cause. An appeal was taken from that decree to the Circuit Court of Kanawha County, and from that court to this court, and on June 2, 1936, this court entered an order reversing the decree of the court below "so far only as it adjudged Baier liable to the receiver for the use and benefit of the creditors of Sutler", and such decision was certified to the Circuit Court of Kanawha County, and by that court to the Court of Common Pleas, as required by Code, 58-5-28. So far as the record discloses nothing was done in the cause until the 31st of December, 1937, when counsel for Baier presented to the Court of Common Pleas, and asked to have entered a decree which set out in extenso the order of this court making its decision aforesaid effective, and expressly making said decision its own, followed by a finding that the said Baier "is not liable for the debts due from R. A. Sutler to the materialmen mentioned and described in plaintiffs' original, amended and supplemental bills of complaint filed herein", and decreeing that said materialmen take nothing by their suit and that said Baier go hence without day. This proposed decree the court below refused to enter, but did, on the same day, enter a decree prepared and tendered for entry by counsel for The W. F. Shawver Sons Company and other materialmen in which, likewise, the order of this court in said cause on appeal is set out in extenso, and made the decision of that court, and in which the said cause was, on motion of the plaintiff, dismissed. There was also incorporated in said decree a discharge of the special receiver for the surety company, and it was stipulated that the decree should become effective as of the 23rd of September, 1937...
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