City Of Beckley v. Craighead, (CC 662)

• Citation: 125 W.Va. 484
• Decision Date: 23 March 1943
• Docket Number: (CC 662)
• Parties: City of Beckley, a Municipal Corporation, Etc., v. Ocie Craighead
• Court: Supreme Court of West Virginia

125 W.Va. 484

City of Beckley, a Municipal Corporation, Etc., v.Ocie Craighead

(CC 662)

Supreme Court of Appeals of West Virginia.

Submitted February 9, 1943.

Decided March 23, 1943.

Judgment

A notice of motion for judgment to recover money due on contract brought under Code, 56-2-6, must allege that the amount sought to be recovered is due and payable to the plaintiff from the defendant by virtue of the terms of a contract, either express or implied, with which the defendant has failed to comply.

Certified from Circuit Court, Raleigh County.

Action by notice of motion for judgment by City of Beckley, a municipal corporation, against Ocie Craighead to recover on notice for sewage service furnished by city sanitary board to defendant. The circuit court sustained a demurrer to the notice of motion for judgment, and certified questions to the Supreme Court of Appeals.

Affirmed.

W. A. Thornhill, Jr., for plaintiff.

Ashworih & Sanders, for defendant.

Peck, Shaffer, Williams & Gorman, Caldwell, Marshall, Trimble & Mitchell and John N. Mitchell, amici curiae on behalf of plaintiff.

Kenna, Judge:

This proceeding of notice of motion for judgment was brought in the Circuit Court of Raleigh County by the City of Beckley, a municipal corporation, acting by and through its Sanitary Board, against Ocie Craighead, the notice having been made returnable May 28, 1942, for the purpose of recovering $100.65, to quote the notice, "that being the sum and amount owed by you to the said Sanitary Board for the City of Beckley and past due for more than thirty days, for the use of and service rendered to you and your property by the sewage system of the City of Beckley", naming a period of two years and alleging that the amount includes a penalty for non-payment. Accompanying the notice was the usual verified statement of items going to make up the plaintiff's account. On the eighth day of June, 1942, no reason appearing of record for the ten-day interval, the defendant appeared and demanded a bill of particulars, which the plaintiff was required to file, and which, as originally prepared, included two exhibits of fifteen pages and, by stipulation entered later, embraced exhibits "A" to "G", inclusive.

The order entered by the circuit judge on June 8, 1942, filing the bill of particulars and sustaining the demurrer to the notice, certifies eight questions of law to this Court. Following the entry of that order and on August 24, 1942, the attorneys representing the city and the defendant signed a quite lengthy stipulation involving what they termed "Essential Facts" and "Exhibits". It will be observed that the trial court did not have before it when the demurrer was acted upon and questions certified to this Court, the matter embraced by the stipulation, so that, the questions certified being restricted necessarily to the record upon which the trial court acted, our answer as to the correctness of his findings cannot include a later enlargement of the reasons, pro and con, considered by the attorneys representing the parties, but not by the court. Had the trial judge desired to pass upon the de- murrer, including the stipulation and exhibits filed therewith, he might have done so by rescinding his former order sustaining the demurrer, and reconsidering that pleading upon the record as it then stood. Had that course been taken, however, upon demurrer to the notice the trial court would not have considered, as a part of the notice, matter appearing only in the bill of particulars. See Baker v. Letzkus, 113 W. Va. 533, 168 S. E. 806. In addition, this Court is now of the opinion, notwithstanding the second syllabus in Water Co. v. Kingwood, 121 W. Va. 66, 1 S. E. 2d 395, that the use of exhibits in notice of motion proceedings is improper.

The eight questions of law certified to this Court by the circuit judge are as follows:

1. Can a municipality lawfully impose charges for the use of a public sewerage system as set forth in the notice of motion for judgment filed herein, together with the bill of particulars filed in connection with the notice of motion for judgment.

2. Is a charge for sewerage service a tax and as a tax should it not be assessed equally against each user of said system and not in proportion to the amount of use thereof.

3. If the plaintiff has a lien against the defendant is not such lien or claim enforceable only in a suit in equity and not at law.

4. Is the ordinance of the City of Beckley enacted in pursuance of Chapter 16, Article 13 of the Code of West Virginia invalid and void.

5. Is the ordinance of the City of Beckley enacted in pursuance of Chapter 16, Article 13 of the Code of West Virginia unconstitutional.

6. Does the notice of motion for judgment, together with the bill of particulars filed herein, state a cause of action against the defendant.

7. Is the assessment made by the Sanitary Board for the City of Beckley for the use of and service rendered to the property...