Crawford v. Taylor

• Citation: 75 S.E.2d 370,138 W.Va. 207
• Decision Date: 15 April 1953
• Docket Number: No. 10554,10554
• Parties: CRAWFORD et al. v. TAYLOR, Judge, et al.
• Court: Supreme Court of West Virginia

Page 370

75 S.E.2d 370

138 W.Va. 207

CRAWFORD et al. v. TAYLOR, Judge, et al.

No. 10554.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 17, 1953.

Decided March 31, 1953.

Dissenting Opinion April 15, 1953.

Syllabus by the Court.

1. Prohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari.

2. A writ of prohibition will not lie to restrain a trial court from proceeding in a chancery suit, based upon two allegedly void judgments, rendered by a justice of the peace, for the sale of land to satisfy such judgments, where the trial court has jurisdiction and has not exceeded its legitimate powers.

James E. Maroney, Cabin Creek, for petitioners.

Stanley E. Preiser and John G. Hackney, Charleston, for defendants.

BROWNING, Judge.

Earl Crawford and Virgie Crawford petitioned this Court for a writ of prohibition inhibiting the respondents, L. H. Bryant, d.b.a. Bryants I. G. A. Grocery Store, Frank L. Durrett, Justice of the Peace and Frank L. Taylor, Judge of the Circuit Court of Kanawha County, from proceeding further in a pending chancery suit, the purpose of which is to subject the petitioners' real estate to sale to satisfy certain judgments.

The petition, in brief, avers that the petitioners were indebted to the respondent, L. H. Bryant, in the amount of $543.64 for groceries purchased on a running account; that Bryant instituted two actions before respondent Durrett, Justice of the Peace, one for the recovery of $299.92, the other for the recovery of $242.42, and that judgments were obtained in his favor for the amounts sued for, plus interest and costs; and that Bryant has instituted a suit in chancery in the Circuit Court of Kanawha County to subject real estate of the petitioners to a sale for the satisfaction of these two judgments.

A rule to show cause why the writ should not be awarded was issued by this Court on February 2, 1953, returnable February 17, 1953, at which time the respondents appeared and demurred to the petition on the grounds: (1) That the petition shows on its face that the Circuit Court of Kanawha County has jurisdiction to determine the validity of the judgments rendered against the petitioners, and that in such case a writ of prohibition will not lie; and (2) that the petition is defective in that it no where alleges that the Circuit Court of Kanawha County is exceeding its legitimate powers. The respondent, Frank L. Taylor, Judge of the Circuit Court of Kanawha County, filed his separate return and answer setting forth that he knows nothing of the facts in the matter or of the two judgments referred to in the petition.

Code, 53-1-1, relating to the writ of prohibition, and upon which the instant petition is based, reads as follows: 'The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.'

The petitioners contend that the respondents, having admitted by their demurrer to the petition that the judgments rendered by one of the respondents, Justice of the Peace Durrett, were obtained by a splitting of the cause of action by the respondent Bryant, that such judgments were void, and, therefore, the Judge of the Circuit Court of Kanawha County should be prohibited from proceeding further in a chancery cause based upon those judgments to subject the real estate of the petitioners to sale. This Court held in State ex rel. Shawver v. Casto, W.Va., 68 S.E.2d 673, quoting from Mitchell v. Davis, 73 W.Va. 352, 80 S.E. 491, that: 'In a civil action before a justice, the amount named in the summons determines jurisdiction. If plaintiff's claim exceeds $300, he may release all above that sum and sue for the remainder, but he can not divide his claim and bring separate suits.'

The demurrer of the respondents to the petition of the relators admits that the judgments upon which this chancery suit is based were obtained by the splitting of a cause of action before the justice of the peace directly contrary to the holding in the Casto case. However, any admissions by demurrer which the respondents have made are for the purpose of this action only, and they are not thereby bound in any other proceeding. They admit the contents of the petition solely upon the issue of whether the writ of prohibition should issue in this cause and for no other purpose. If this were a proceeding by the relators to prohibit the justice of the peace from satisfying the judgments rendered by him by execution, there is no doubt that the admission by the respondents by way of demurrer would bring the case squarely within the prohibitions of State v. Casto, supra. The relief they seek, however, is to restrain the Judge of the Circuit Court of Kanawha County from proceeding in a chancery cause in that court based upon the allegedly void judgments. It would appear from this record that the chancery suit is at rules, nothing having occurred in it except the filing of the bill by Bryant. This question was squarely before this Court in Sperry v. Sanders, 50 W.Va. 70, 40 S.E. 327, and it was held in that case that: 'In a chancery suit brought to enforce the lien of a judgment upon real estate a circuit court has jurisdiction to determine whether or not such judgment is valid, although it may be void upon it face; and the writ of prohibition does not lie to restrain the judge of such court from proceeding in such cause.' In that case, the petitioner sought to restrain the judge of a circuit court from further proceeding in a chancery cause to enforce the alleged lien of a judgment alleged to be void against the real estate of the petitioner, and to have the same sold for the purpose of paying off and satisfying the judgment, that judgment having been entered by the same court, although on the law side thereof. This Court, continuing in Sperry v. Sanders, supra, said: '* * * The court has power and jurisdiction to hear and determine all cases of that class. It may consider whether the judgment is valid, and determine that question in this case as well as in any other. Having the right to consider that question, and to hear and determine it, its jurisdiction of the cause is complete, and prohibition does not lie to prevent it from so proceeding, even if it should err in the determination of the question to the extent of holding a judgment good and valid which is clearly void upon it face. Such error would not amount to an act in excess of the court's legitimate powers, nor to an abuse of its jurisdiction. Should the court decide the question wrong, the defendant's remedy, if any, would be by appeal, as in any other chancery cause in which the court has jurisdiction and an erroneous decree is entered. Prohibition does not lie for the correction of errors, and it cannot take the place of any of the ordinary proceedings for the correction of errors. * * *'

In the instant case, as in the Sperry case, the petitioners seek to restrain the further prosecution of a suit in chancery, brought to enforce the alleged lien of a judgment, which is separate and distinct from the action at law in the justice of the peace court in which it is claimed that the justice acted in excess of his legitimate powers. In Dankmer v. City Ice & Fuel Co., 1939, 121 W.Va. 752, 6 S.E.2d 771, 774, this Court said: 'But the question remains as to whether or not, even if the court was without power to enter the decree of November 12, 1937, its enforcement in another and different suit can be prohibited by writ of prohibition. If an effort were being made to enforce said decree in the suit in which it was entered, then we would say prohibition would clearly be an available remedy; but we hesitate to extend the rule to control the action of a court in an independent suit wherein, if the judgment under attack be presented, the defense of lack of jurisdiction of the court to enter it may be asserted. * * *'

While it may be contended, with some degree of accuracy, that this Court has, by its decisions, extended the scope of prohibition, we are unable to find a case which permits the invoking of this proceeding where the trial court has jurisdiction of both the subject matter of the litigation and of the parties thereto. It is true that in the earlier cases, the Court adopted the rule that a challenge to the jurisdiction should be made in the trial court as a condition precedent to the right to apply to this Court for a writ of prohibition. Board of Education of Black Fork Dist. v. Holt, 51 W.Va. 435, 41 S.E. 337, and many other cases so hold. The Court stated in Morris v. Calhoun, 119 W.Va. 603, 195 S.E. 341, however, that the rule was never an inflexible or arbitrary one, but more one of judicial courtesy to the court sought to be prohibited, and had been abandoned. The Court awarded a writ in the Morris case for the reason that the lower court did not have jurisdiction inasmuch as the defendant in the court below had been served with civil process in a county other than that of his residence, while appearing pursuant to a criminal charge of reckless driving resulting from an automobile accident.

In Wolfe v. Shaw, 113 W.Va. 735, 169 S.E. 325, 326, a case which since has been cited as extending the scope of prohibition, the writ was awarded upon the basis of the establishment, by the taking of evidence upon a plea in abatement, that the defendant in the lower court had been joined as a party defendant, and served with process in a county other than that of his residence as a part of a fraudulent scheme to obtain jurisdiction of his person. The Court, noting in its opinion in the Wolfe case that the defendant had preserved his right to raise the...