Duncan v. Tucker County Bd. of Ed.

• Decision Date: 09 March 1965
• Docket Number: No. 12326,12326
• Citation: 149 W.Va. 285,140 S.E.2d 613
• Parties: Dale DUNCAN et al. v. TUCKER COUNTY BOARD OF EDUCATION et al.
• Court: West Virginia Supreme Court

Page 613

140 S.E.2d 613

149 W.Va. 285

Dale DUNCAN et al. v. TUCKER COUNTY BOARD OF EDUCATION et al.

No. 12326.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 1965.

Decided March 9, 1965.

Syllabus by the Court

1. 'The issuance and the service of process in the manner prescribed by statute, unless waived, are essential to the jurisdiction of the trial court to entertain a proceeding in mandamus.' Point 2 Syllabus, Smith v. Bosworth, Judge, etc., et al., 145 W.Va. 753

2. An appearance for the purpose of challenging the jurisdiction of the court is a special appearance. In determining whether an appearance is general or special, courts look to matters of substance rather than to form, and at the state of the record at the time the appearance is made.

3. Proceedings had in a court which has not acquired jurisdiction in a manner recognized by law are void and a nullity.

W. Del Roy Harner, J. Pat Nichols, Parson, for plaintiffs in error.

Bonn Brown, Elkins, for defendants in error.

CALHOUN, Judge.

The petitioners, appellees, undertook to proceed by mandamus in the Circuit Court of Tucker County to compel the respondents, appellants, Tucker County Board of Education, the individual members of that body, and the county superintendent of schools, who is ex-officio secretary of the board, to rescind and set aside an order previously entered, or an action previously taken, by the board by which it closed a public school located in the Town of Thomas in Tucker County.

The mandamus petition alleges that the board's action in closing the school was based on a request of the state superintendent of schools and the state fire marshal. The petition prays that the respondents be directed and required to accept an offer of the petitioners and other citizens to contribute an unspecified sum of money toward repair and renovation of the school building; to make proper repairs; and to order the reopening of the school.

The mandamus petition was filed in the office of the clerk of the circuit court on July 24, 1963, and on the same day the clerk issued a summons pursuant to R.C.P. 4, which required the respondents to answer the 'complaint' within twenty days. A copy of the mandamus petition, as well as a copy of the summons, was served upon each respondent. On August 9, 1963, the respondents, by counsel, filed with the clerk of the circuit court a writing which was designated as a 'Motion Under Rule 12(b)', by which the respondents moved to dismiss the action on the ground that the complaint failed to state a claim against the defendants upon which relief could be granted. A ground for the motion was stated therein as follows: 'The proceeding is brought under the W.Va.R.C.P. and prays for the issuance for a Writ of Mandamus. Rule 81(a)(5) provides that the Rules do not apply to a proceeding for a Writ of Mandamus. Mandamus is a statutory remedy provided for in Chapter 53, Article 1 of the West Virginia Code. Section 5 of said Article provides that the judge to whom the Petition in Mandamus is presented shall, if the Petition makes a prima facie case, issue a Rule against the Defendants to show why the Writ prayed for should not be awarded. The section further provides that a copy of the Petition shall accompany service of the Rule and that the Rule shall be returnable at a time to be fixed by the judge.'

Counsel for the respondents gave notice that the motion would be brought before the court for hearing on August 22, 1963. A brief was filed by counsel for the respondents in support of the motion and counsel for the petitioners filed a reply brief.

A court order discloses that the parties appeared before the court in person and by counsel on August 22, 1963, 'pursuant to a letter from the Court to the respective Attorneys setting this matter for hearing on this date.' The order contains the following additional language: 'The Defendants by their Attorneys having previously filed herein a Motion to Dismiss this action under Rule 12(b), the Court announced that it was overruling said Motion for the time being and directed the parties to proceed with the taking of testimony. Counsel for the Defendants objected to proceeding with testimony before the time permitted by the rules for the filing of the Defendants' answer.' The taking of testimony was commenced on that day, continued on the next day and the further taking of testimony was continued to October 3, 1963, and from that date to October 7, 1963.

An order entered by the trial court on December 11, 1963, recites the appearance of all parties by counsel; that the testimony had been previously completed and transcribed; that the motion to dismiss made previously by the respondents was overruled, to which action the respondents by counsel excepted; and that a writ of mandamus was awarded. The terms and conditions of the writ are rather lengthy and we do not deem it necessary to a decision of the case to state the details of such term and conditions.

By an order entered on December 20, 1963, the court overruled various motions made in behalf of the respondents and granted to the respondents a stay of sixty days from that date to apply to this Court for an appeal. A writ of error was granted by this Court on April 6, 1964.

We are of the opinion that the motion of the respondents to dismiss the proceeding should have been sustained and that the proceeding should have been dismissed by the trial court.

Rule 81(a)(5) of the Rules of Civil Procedure is as follows: 'These rules do not apply to proceedings under the writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and upon an information in the nature of a quo warranto.' The mandamus proceeding involved in this case was commenced and apparently proceeded to final judgment pursuant to the Rules of Civil Procedure. The respondents appeared at the first opportunity and objected to the jurisdiction of the court on the ground that the proceeding had not been instituted in the manner prescribed by statute. Jurisdiction of the person may be conferred by consent or waiver, but parties cannot by consent confer jurisdiction of the subject matter. Consent of parties cannot confer upon a court jurisdiction which the law does not confer. State ex rel. Hammond v. Worrell, 144 W.Va. 83, pt. 4 syl., 106 S.E.2d 521; Yates v. Taylor County Court, 47 W.Va. 376, pt. 2 syl., 35 S.E. 24.

An appearance for any purpose other than to question the jurisdiction of the court, or to set up lack of process, or defective service thereof, is a general appearance. Smith v. Smith, 138 W.Va. 388, pt. 3 syl., 76 S.E.2d 253; Bennett v. Bennett, 137 W.Va. 179, pt. 1 syl., 70 S.E.2d 894; Stone v. Rudolph, 127 W.Va. 335, pt. 1 syl., 32 S.E.2d 742. Conversely, an appearance to challenge the court's jurisdiction of the person or the subject matter is a special appearance and jurisdiction is not thereby conferred. Patton v. Eicher, 85 W.Va. 465, pt. 3 syl., 102 S.E. 124. It is not essential for the party appearing to challenge the jurisdiction of the court to state expressly that he is appearing specially for that purpose. In determining whether an appearance is general or special, courts look to matters of substance rather than to form, and to the state of the record at the time the motion is made. Tabor v. Baer, 107 W.Va. 594, pt. 2 syl., 149 S.E. 675; M. Fisher, Sons & Co. v. Crowley, 57 W.Va. 312, pt. 4 syl., 50 S.E. 422. We believe that it appears quite clearly from the record that the initial appearance of the respondents was to challenge the jurisdiction of the court and that, over proper objection, the respondents were required to proceed to a trial or hearing of the case on its merits.

Article VIII, Section 12 of the Constitution confers jurisdiction upon circuit courts in mandamus proceedings; but the procedure by which a circuit court acquires jurisdiction in a mandamus proceeding is set forth in Article 1 of Chapter 53 of Code, 1931, as amended. Section 2 provides in part: 'A rule to show cause as hereinafter provided for may be issued by a judge of a circuit court or of the supreme court of appeals in vacation.' It will be noted that this section does not authorize any person other than a judge to issue a rule to show cause in the vacation of the court. Section 3 provides: 'Application for a writ of mandamus or a writ of prohibition shall be on verified petition.'

The procedure by which a circuit court obtains jurisdiction to entertain and to hear a proceeding in mandamus is stated more fully in Section 5 as follows: 'The court or judge to whom the petition in mandamus or prohibition is presented shall, if the petition makes a prima facie case, issue a rule against the defendant to show cause why the writ prayed for should not be awarded. A copy of the petition shall accompany service of the rule. Such rule shall be returnable at a time to be fixed by the court or judge.'

It is clear from the statutory provisions referred to above that the issuance of a rule to show...