Bice v. Boothsville Tel. Co.

Decision Date12 November 1907
Citation59 S.E. 501,62 W.Va. 521
CourtWest Virginia Supreme Court

Submitted June 10, 1907.

Syllabus by the Court.

An appellate court, on dismissing an appeal for want of jurisdiction, has no jurisdiction or power to render a judgment for costs of the suit.

[Ed Note.-For cases in point, see Cent. Dig. vol. 13, Costs, § 880.]

Section 4, c. 138, Code 1899 (Code 1906, § 4127), empowering the court to give or withhold, in its discretion, costs on any motion, other than a motion for a judgment for money authorizes judgment for costs incident to the motion, but not costs of the suit.

[Ed Note.-For cases in point, see Cent. Dig. vol. 13, Costs, § 229.]

The enforcement of a judgment for costs, not authorized by any statute, may be prohibited as a judgment rendered without jurisdiction, when the court rendering it has not jurisdiction of the cause on any other ground.

The rule respecting application to the inferior court to vacate its unauthorized judgment before awarding a writ of prohibition to prevent the enforcement thereof is discretionary, and the judgment of a circuit court, on review in the Supreme Court of Appeals, will not be reversed for failure of the circuit court to require such application before awarding the writ.

[Ed Note.-For cases in point, see Cent. Dig. vol. 40, Prohibition, §§ 4, 11.]

Error from Circuit Court, Marion County.

Application by J. Lee Bice against the Boothsville Telephone Company and others for a writ of prohibition. From an order granting the same, the telephone company brings error. Affirmed.

Harry Shaw, for plaintiff in error.

W. S. Meredith, for defendant in error.


The Boothsville Telephone Company recovered a judgment in a justice's court for the sum of $8, against J. Lee Bice, who took an appeal therefrom to the intermediate court of Marion county, whence the appeal was, on motion, dismissed for want of jurisdiction; the amount in controversy being insufficient. The order of dismissal was accompanied by a judgment for costs, amounting to $17.35, and, denying a lack of jurisdiction in the court to adjudge costs in dismissing an appeal for want of jurisdiction, Bice obtained from the circuit court of said county a writ of prohibition inhibiting the enforcement of the judgment. To the judgment of the circuit court awarding said writ, the telephone company obtained from this court a writ of error.

The federal courts uniformly deny power in the court to award costs on dismissing for want of jurisdiction. Inglee v. Coolidge, 2 Wheat. (U. S.) 360, 4 L.Ed. 261; McIver v. Wattle, 9 Wheat. (U. S.) 650, 6 L.Ed. 182; Strader v. Graham, 18 How. (U. S.) 602, 15 L.Ed. 464; Hornthall v. Keary, 9 Wall. (U. S.) 560, 19 L.Ed. 560; Mayer v. Cooper, 6 Wall. (U. S.) 247, 18 L.Ed. 851; Bank v. Cannon, 164 U.S. 319, 17 S.Ct. 89, 41 L.Ed. 451. Some of these cases were referred to in the opinion in Nutter v. Brown, 58 W.Va. 237, 52 S.E. 88, 1 L.R.A. (N. S.) 1083, by way of illustration in the discussion of principles governing costs generally, as showing a condition under which there might be no discretion in the court respecting the matter, but no intimation was there given as to whether it would be proper to award costs in such case under our practice. That question was neither involved nor discussed; but several decisions rendered by this court declare the principle of the federal cases. Ferguson v. Millender, 32 W.Va. 30, 9 S.E. 38; State v. Lambert, 52 W.Va. 248, 43 S.E. 176; Elbon v. Hamrick, 55 W.Va. 236, 46 S.E. 1029; Baker v. Tappan, 56 W.Va. 349, 49 S.E. 447. Some apparent exceptions, as well as some actual ones, are recognized by all courts, and in some jurisdictions the rule is not observed at all. The federal Supreme Court holds that the costs of a motion to dismiss for want of jurisdiction may be allowed, when any expenses incident thereto, such as the printing of the record, have been necessarily incurred for the purposes of the motion, but not costs of the suit, as upon a hearing (Bradstreet Co. v. Higgins, 114 U.S. 262, 5 S.Ct. 880, 29 L.Ed. 176); and, when the appellate court reverses for want of jurisdiction in the lower court, appellate court costs are allowed (Ferguson v. Millender, 32 W.Va. 30, 9 S.E. 38; Freer v. Davis, 52 W.Va. 1, 43 S.E. 164, 59 L.R.A. 556, 94 Am.St.Rep. 895; Gaylord v. Kelshaw, 1 Wall. [U. S.] 81, 17 L.Ed. 612; Railroad Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462; Assessors v. Osborn, 9 Wall. [U. S.] 567, 19 L.Ed. 748; Montalet v. Murray, 4 Cranch [U. S.] 46, 2 L.Ed. 545). For cases wholly denying the rule inhibiting judgment for costs when the court is without jurisdiction of the case, or awarding costs in such cases under special statutes, see 11 Cyc. 211, note 2. On the main question there is sharp conflict of authority; but this court has undoubtedly adopted the rule adhered to by the federal courts, and it seems to be sustained by the great weight of authority throughout the country. In doing so, we have necessarily construed the statutes we have as not authorizing costs in such cases, even though they may not have been specially considered. One exception among our own decisions has been observed (Taylor v. Maynor, 46 W.Va. 588, 33 S.E. 260), but the matter of costs was not discussed. It was referred to in Elbon v. Hamrick, 55 W.Va. 236, 46 S.E. 1029, but not followed in respect to costs. These observations apply, also, to Richmond v. Henderson, 48 W.Va. 389, 37 S.E. 653, in which this court, dismissing a writ of certiorari on a writ of error, awarded costs in the court below, as well as costs in this court. Frye v. Miley, 54 W.Va. 325, 46 S.E. 135, was a different kind of case. There a bill in equity was dismissed as upon a demurrer, and the statute (section 4, c. 138, Code 1899 [Code 1906, § 4127]) probably warranted the decree for costs.

All costs are of statutory authorization, for the common law gave none in any case. 11 Cyc. 24; 5 Ency. Pl. & Pr. 110. Statutes relating to costs must be strictly construed. 11 Cyc. 27; 5 Ency. Pl. & Pr. 111. In England and many of the states of this country they are regarded as penal statutes (11 Cyc 27); but our statute declares them not penal (Code 1899, c. 138, § 10 [Code 1906, § 4133]). The statutory provisions, relied upon as giving jurisdiction, are sections 4, 8, and 11 of chapter 138 of the Code of 1899 (Code 1906, §§ 4127, 4131, 4134). Section 4 says: "Upon any motion (other than for a judgment for money), or upon any interlocutory order or proceeding, the court may give or refuse costs, at its discretion, unless it be otherwise provided. *** And when any part of the proceedings is adjudged insufficient, order all costs occasioned by such insufficient pleading, to be paid by him who committed the fault." Section 8 provides as follows: "Except where it is otherwise provided, the party for whom final judgment is given in any action, or in a motion for judgment for money, whether he be plaintiff or defendant, shall recover his costs against the opposite party." Section 11 says: "In every case in an appellate court, costs shall be recovered in such court by the party substantially...

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