Ellte Laundry Co v. Dunn

• Decision Date: 30 May 1944
• Docket Number: No. 9559.,9559.
• Citation: 30 S.E.2d 454
• Court: West Virginia Supreme Court
• Parties: ELLTE LAUNDRY CO. v. DUNN.

30 S.E.2d 454

ELLTE LAUNDRY CO.

v.DUNN.

No. 9559.

Supreme Court of Appeals of West Virginia.

May 30, 1944.

Concurring Opinion June 15, 1944.

Syllabus by the Court.

A petition to the Circuit Court of Kanawha County for a writ of error and supersedeas to a judgment of the Court of Common Pleas of that county cannot be received or acted upon unless presented within four months after the date of such judgment.

Error from Circuit Court, Kanawha County.

Action by the Elite Laundry Company against R. H. Dunn, doing business as the Dunn Hospital, on a claim for laundry done by plaintiff for defendant, who filed a counterclaim for the value of articles sent to plaintiff for laundering, but never returned to defendant. To review a judgment of the circuit court, reversing a judgment of the court of common pleas on a directed verdict for plaintiff, setting aside the verdict, and remanding the cause for a new trial, plaintiff brings error.

Reversed, and writ of error from the circuit court to the court of common pleas dismissed.

I. L. Hark and J. Howard Hundley, both of Charleston, for plaintiff in error.

Homer Blizzard, John F. Ellison, and Charles A. Brown, all of Charleston, for defendant in error.

ROSE, President.

The Elite Laundry Company, a corporation, hereinafter called the plaintiff, instituted a civil action before a justice of the peace of Kanawha County against R. H. Dunn, doing business as Dunn hospital, who will be herein called the defendant. The bill of particulars filed showed a claimfor laundering done by plaintiff during the months of August and September, 1941, the charges for which aggregated $233.71. The defendant filed a counterclaim for articles sent to the plaintiff for laundering but which are alleged never to have been returned, the value of which is placed at $151.28, and tendered a check for the residue of plaintiff's claim. The tender was not accepted, and on trial had there was no dispute as to the plaintiff's bill. The justice sustained in full the defendant's counterclaim and rendered judgment for $82.65.

On appeal the case was tried to a jury in the Court of Common Pleas of Kanawha County. At the conclusion of the evidence for both plaintiff and defendant the plaintiff moved for a directed verdict in its favor on the grounds (1) that there was a lack of legal proof as to the quantity of laundering delivered to and received from the plaintiff, and (2) that there was no competent evidence of the value of any of the articles alleged to have been lost. The court overruled the motion on the first ground but sustained it on the second. At the direction of the court the jury returned a verdict in favor of the plaintiff for the full amount of its claim of $233.71, and judgment was entered accordingly on August 28, 1942.

On a writ of error from the Circuit Court of Kanawha County this judgment was reversed, the verdict set aside and the cause remanded to the Court of Common Pleas for a new trial. Afterward, the plaintiff filed in the Circuit Court its petition alleging that that court had no jurisdiction to consider the petition for a writ of error or to act on a writ of error granted, for the reason that such petition was not filed in that court until the 30th day of March, 1943, or more than four months after the rendering of the judgment complained of, and prayed for the setting aside of all orders entered by the Circuit Court in the case. This the court refused to do. The plaintiff then applied for and obtained a writ of error from this Court to the judgment of the Circuit Court.

We are first concerned with the question raised by the plaintiff's petition to the Circuit Court. Code, 58-4-4, provides that "No petition shall be presented to the circuit court or judge for an appeal from, or writ of error or supersedeas to, any judgment, decree or order rendered or made by such court of limited jurisdiction, whether the

State be a party thereto or not, which shall have been rendered or made more than four months before such petition is presented." The Court of Common Pleas of Kanawha County, however, was created by a special act passed by the Legislature February 20, 1915, being Chapter 109 of the Acts of the Legislature of that year. Section 18 of that act provides that:

"Any person who is a party to any such controversy wishing to obtain an appeal, writ of error or supersedeas, in the cases named in the seventeenth section of this act, may present to the circuit court of Kanawha county, or the judge thereof in vacation, a petition therefor, and chapter one hundred and thirty-five of the code of West Virginia, concerning appeals to the supreme court of appeals shall so far as applicable, govern the proceedings on such appeal, writ of error or supersedeas, as to the duties of the petitioner, the said court and clerk thereof; * * *."

Chapter 135 of the Code (§ 3) as it then stood allowed one year within which appeals from the Circuit Court to the Supreme Court of Appeals might be presented. This period was, by Chapter 57, Section 3 of the Acts of the Legislature, 1921, reduced to eight months.

The plaintiff insists that the four-months' provision of Code, 58-4-4, controls, and that the record shows that the petition to the Circuit Court was not presented until March 30, 1943.

The defendant's position is that the provisions of the special act creating the Court of Common Pleas of Kanawha County should prevail and that he, therefore, had eight months after the 28th day of August, 1942, within which to present his petition for review to the Circuit Court, but further insists that the record, properly construed, shows that the petition was legally presented to that court within four months from the date of the judgment complained of.

The constitutionality of the whole of Article 4 of Chapter 58 of the Code is challenged on the ground that it originated in the Code of 1931 but is not comprehended in the title of the act by which that Code was constituted. The title of that act reads thus:

"An Act to revise, arrange and consolidate into a Code the general statutes of the State of West Virginia, and to repeal all acts and parts of acts of a general naturein force on the thirty-first day of December, nineteen hundred and thirty, subject to such limitations and exceptions as are provided in chapter sixty-three of this Code."

It is urged that this title cannot justify the inclusion in the Code of a revision, rearrangement or consolidation of anything but "general statutes", or the repeal of any "acts and parts of acts" except those of a "general nature"; and that, therefore, any attempted or purported amendment of the act creating the Court of Common Pleas, or any part thereof, is outside the title of the Code Act and void. We admit the potency of this argument. We had this question before us in the cases of Roberts v. Travelers Insurance Co. and Roberts v. The General American Life Insurance Co., in which a decision by a divided Court was announced March 3, 1942, to the effect that the eight-months' provision of the special act creating the Court of Common Pleas survived in the face of the provisions of Code, 58-4-4. But a rehearing was granted in those cases, and before reargu-ment, on motion of the plaintiff in each case, the writs of error were dismissed. Accordingly, no final judgment of this Court proceeded out of those cases. We must, therefore, re-examine and determine the question in the case at bar.

The Constitution of this State, Article 6, Section 30, provides that "No act hereafter passed, shall embrace more than one object, and that shall be expressed in the title." This provision is mandatory. Simms v. Sawyers, 85 W.Va. 245, 101 S.E. 467. But there always exists a strong presumption in favor of the constitutionality of any legislative act. State v. Cordi, 103 W.Va. 23, 136 S.E. 505; State v. Haskins 92 W.Va. 632, 115 S.E. 720; Booten v. Pinson, 77 W.Va. 412, 89 S.E. 985, L.R.A. 1917A, 1244; State ex rel. Dillon v. County Court of Braxton County, 60 W.Va. 339, 55 S.E. 382. Also, from sheer impossibility this constitutional provision cannot be enforced with the same degree of rigor in an act comprehending the whole statutory law of the State, as in a simple statute. Central of Georgia Rv. Co. v. State, 104 Ga. 831, 31 S.E. 531, 42 L.R.A. 518; Johson v. Harrison, 47 Minn. 575, 50 N.W. 923, 28 Am. St.Rep. 382; Marston v. Humes, 3 Wash. 267, 28 P. 520. Further, we cannot be oblivious to the fact that this Code provision has been in existence since January 1, 1931, during which time a large number of cases have come to this Court through circuit courts from courts of limited jurisdiction, from the records in which we can see that by general agreement of the bench and bar during the last thirteen years, the limitation of four months has been accepted without challenge. This acquiescence, or practical construction, of the statute in question is not at all binding upon the courts, but long agreement by courts and attorneys as to the constitutionality of an act, as respects its title, has been given weight on the question of the title's sufficiency. Detroit City Ry. v. Mills, 85 Mich. 634, 48 N.W. 1007; Somerset County Commissioners v. Pocomoke Bridge Co., 109 Md. 1, 71 A. 462, 16 Ann.Cas. 874.

The Legislature, under the title of the act which we call the Code, of course, could not amend, repeal, or otherwise modify special acts. An attempt so to do would be wholly outside the purview of the title. From this viewpoint, Article 4 of Chapter 58 of the Code, relating to appeals from courts of limited jurisdiction, each of which is created by a special act, might be of questionable constitutionality, to say the least. But if there existed in our statutory law, prior to and at the time of the adoption of the Code of 1931, any general law dealing with appeals from courts of limited jurisdiction, such statute or statutes could be revised, arranged or consolidated by that Code. And there was such a statute. Bv ...