Blair v. Dickinson, 10399

• Decision Date: 11 December 1951
• Docket Number: No. 10399,10399
• Citation: 68 S.E.2d 16,136 W.Va. 611
• Court: West Virginia Supreme Court
• Parties: BLAIR et al. v. DICKINSON.

Page 16

68 S.E.2d 16

136 W.Va. 611

BLAIR et al. v. DICKINSON.

No. 10399.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1951.

Decided Dec. 11, 1951.

Syllabus by the Court.

A case where the action of a circuit court is affirmed, the judges of the Supreme Court of Appeals participating being equally divided.

Jackson, Kelly, Morrison & Moxley and Thomas B. Jackson, all of Charleston, for appellant.

Wolverton & Callaghan and Brooks B. Callaghan, all of Richwood, for appellees.

GIVEN, Judge.

This appeal involves the correctness of the action of the Circuit Court of Nicholas County in decreeing costs of only $386.79 to appellant, John L. Dickinson, against Gauley-Eagle Coal and Coke Company. Appellant contends that the decree in his favor should have been for $1,117.35. This cause was previously before this Court and the opinion rendered therein is reported in W. Va., 54 S.E.2d 828. Dickinson prevailed in the previous decision and was awarded his costs against Gualey-Eagle Coal and Coke Company, T. J. Blair, Jr. and J. N. Berthy, Jr. After the mandate of this Court had been forwarded to the clerk of the circuit court, that court, on May 31, 1950, entered an order which, after reciting appearance of counsel for the respective parties, including appellant and appellee, contains these provisions: '* * * and cause thereupon came on to be heard upon process duly executed upon all parties thereto, and upon all the former record made and proceedings had therein.

'Upon joint motion of said parties, by their respective counsel, it is adjudged, ordered and decreed as follows:

'1. All claims and other matters and things in dispute or controversy solely between said Blair, Berthy and Dickinson, and also between said Dickinson and Lee Matheny, a defendant to the cross-bill of said Dickinson, as appearing from said record and proceedings herein, are fully compromised and settled by the terms and conditions of this decree and this cause is accordingly dismissed as to such claims, matters and things, except as to the sale of real estate as hereinafter decreed and matters relating to said sale.'

Paragraphs 2 to 6, both inclusive, of the decree relate to the sale of the real estate mentioned in Paragraph 1, and have no bearing upon the questions to be considered in this opinion. Paragraphs 7 and 8 of the decree read:

'7. Nothing contained in this decree shall alter, impair or affect any claims asserted, or any other matter or thing stated, against said Gauley-Eagle Coal & Coke Company, J. R. Maust, Excavators, Inc., a corporation, and Bert Jacobson, in the cross-bill of said Dickinson heretofore filed in this cause, or any court costs which said Dickinson may be entitled to collect of and from said Gauley-Eagle Coal & Coke Company upon the record and proceedings aforesaid. No court costs shall be collectible as between said Blair, Berthy and Dickinson or between any of them.

'8. The answer of said Gauley-Eagle Coal & Coke Company praying for affirmative relief against said Dickinson, filed herein, is hereby dismissed as to said Dickinson and said Dickinson shall recover of and from said Gauley-Egale Coal & Coke Company his costs in this behalf expended in this Court and upon appeal in the Supreme Court of Appeals of West Virginia, including a statute fee of $20.00.'

Thereafter appellant filed in the proceeding his motion for judgment for costs, claiming the right to recover of and from appellee the sum of $1,117.35. Upon the hearing of the motion, as above noted, the circuit court, by order entered March 30, 1951, granted recovery in the sum of only $386.79. The sum of which the judgment was entered included $330.45, one-third of the costs decreed to appellant by the Supreme Court of Appeals; $3.00, circuit court clerk's fee for filing the answer of appellant; $33.34, one-third of the fee of the official court reporter; and a $20.00 statute fee.

The contention is made that the order of March 30, 1951, is not an appealable order, for the reason that it involves only costs. Generally this Court will not review the action of a circuit court in a chancery cause relating to court costs, the adjudication of costs being a matter usually within the discretion of the trial court. Solins v. White, 128 W.Va. 189, 36 S.E.2d 132. Where it is made to appear, however, that the discretion of the trial court has been abused, its order awarding costs may be reviewed. Traugh v. Hart, 113 W.Va. 388, 168 S.E. 137; State v. Moore, 77 W.Va. 325, 87 S.E. 367; Castle v. Castle, 69 W.Va. 400, 71 S.E. 385; Nutter v. Brown, 58 W.Va. 237, 52 S.E. 88, 1 L.R.A.,N.S., 1083, 6 Ann.Cas. 94.

In the instant matter the contention is made, upon apparently substantial basis, that the order appealed from is not in accord with the mandate of this Court. The trial court would have no discretion as to compliance with the mdndate. Compliance could only be avoided by proper proceedings in the appellate court, or by action or agreement of the interested parties. The fact that the appellate court finds that noncompliance with the mandate was justified for some such reason does not require a dismissal of the appeal. We are of the view, therefore, that the order of March 30, 1951, is an appealable order.

Appellant further contends that the decree of May 31, 1950, is a consent decree constituting a contract between the parties, and that the order appealed from is violative of the terms of the contract. The appellee contends that as to it the decree of May 31, 1950, is not a consent decree, and that by the action of the appellant, in releasing Blair and Berthy from liability as to two-thirds of the costs by the compromise settlement, he also necessarily released the appellee as to the two-thirds of the costs chargeable against Blair and Berthy under the mandate, since appellee was thereby denied the right to recover contributions from Blair and Berthy.

A consent decree constitutes a contract between the parties thereto, and it is beyond the power of the court to alter it, except by the action or consent of the parties, or as to mere clerical errors. Stannard Supply Co. v. Delmar Co., 110 W.Va. 560, 564, 158 S.E. 907; Castle v. Castle, supra; Myllius v. Smith, 53 W.Va. 173, 44 S.E. 542; McArthur v. Thompson, 140 Neb. 408, 299 N.W. 519, 139 A.L.R. 413, 422n; 31 Am.Jur., Judgments, Sections 458-464. The consent, however, must appear from the face of the record. Shinn v. Shinn, 105 W.Va. 246, 142 S.E. 63; Bank of Gauley v. Osenton, 92 W.Va. 1, 114 S.E. 435. 'The consent should be so clear and specific in terms that no mistake can arise respecting the concurrence of the parties and it should be complete and unqualified.' 49 C.J.S., Judgments, § 175. A consent decree must be construed in the same manner as other contracts. Seiler v. Union Manufacturing Co., 50 W.Va. 208, 40 S.E. 547; Morris v. Peyton, 29 W.Va. 201, 11 S.E. 954; 49 C.J.S., Judgments, § 178. A consent decree need not apply to all of the parties to a cause, and it may apply to only part of the matters involved therein. Myllius v. Smith, supra; Gregg v. Sloan, 76 Va. 497.

The only matter in the record indicating that the decree of May 31, 1950, is a consent decree is the statement that 'Upon joint motion of said parties, by their respective counsel, it is adjudged, ordered and decreed as follows * * *.' It may be seriously questioned whether such a provision, standing alone, constitutes an order one of consent, for it is not unusual for litigants to consent, even insist, that an order be entered at a certain time or in certain form, for the purpose of hastening the determination of litigation. In Morris v. Peyton, 29 W.Va. 201, 11 S.E. 954, the decree recited: "By consent of all parties to these (consolidated) causes, these causes came on * * * to be heard * * *. And, by like consent, it is agreed that, unless said several sums of money are fully paid * * * special commissioners * * * shall * * * proceed to sell * * *" certain lands. The Court held, notwithstanding the recitals, that the decree showed upon its face it was not a consent decree, but treated the decree as being one of consent because the parties 'estopped themselves from saying that the whole of it is not a consent decree.'

In Denny v. Searles, 150 Va. 701, 143 S.E. 484, 493, a decree was entered upon a compromise agreement. The decree recited 'that all parties in interest desired the court to approve the release and settlement, which it did.' Yet the Court held: 'Upon its face, this decree is not a consent decree, but an ordinary decree entered by the court, with the recital, 'and was argued by counsel,' which at least signifies knowledge of all counsel of its entry * * *.'

But the recital 'Upon joint motion of said parties' does not stand alone. Other provisions of the decree show, we believe, that it was not a consent decree. Paragraph 1, quoted above, shows clearly that the compromise agreement related 'solely' to the matters in dispute as to Blair, Berthy, Dickinson and Matheny. Appellee was in no manner connected with the compromise agreement. The question as to whether the decree is one of consent as to Blair, Berthy, Dickinson and Matheny is not before the Court. It is clear that the decree could be one of consent as to such parties and not as to appellee. The decree also contains this further clause: '* * * and this cause thereupon came on to be heard upon process duly executed, upon all parties thereto, and upon all the former record made and proceedings had therein.' Such a recital would, we believe, show that the matters in dispute were adjudicated after a hearing, not consented to. That would certainly be true as to parties not connected with the compromise agreement. Why should the court hear a matter that has been agreed upon? There is no consent decree where the adjudication is made upon hearing, upon consideration by the court, or upon an investigation of the court. 34 C.J., Judgments, Section 331;...