First Nat. Co. v. Mariani
| Decision Date | 06 June 1950 |
| Docket Number | No. 10178,10178 |
| Citation | 134 W.Va. 135,59 S.E.2d 465 |
| Court | West Virginia Supreme Court |
| Parties | FIRST NATIONAL CO. v. MARIANI et al. |
Syllabus by the Court.
This Court, upon its own motion, will reverse a decree of a trial court entered in proceedings wherein necessary parties, though named defendants, have not been served with process or have not appeared.
M. O. Litz, Charleston, Henry S. Cato, Charleston, for appellant.
P. G. Meador, Charleston, for appellee.
LOVINS, Presiding.
From a decree of the Circuit Court of Kanawha County, refusing an appeal and supersedeas from an adverse decree of the Court of Common Pleas of Kanawha County, this Court granted defendant, G. T. Fogle & Company, an appeal. The facts giving rise to this proceeding are as follows:
On September 7, 1925, the City of Dunbar levied and assessed a street paving assessment against Lot No. 37, Block 22, of the City of Dunbar, which lot was then owned by the defendant, Gaetano Mariani. Said street assessment was levied and assessed pursuant to Section 61, Chapter 7, Acts of the Legislature, 1921 (Municipal Charters), being the municipal charter for the City of Dunbar, which provides for the issuance of a street paving assessment certificate in the amount of, and evidencing the indebtedness secured by, the lien of the assessment. Section 61 id. further provides, among other things, that 'The lien hereinafter provided for shall have priority over all other liens except those for taxes due the state and shall be on a parity with taxes and assessments due the city.'
Certificate No. 949, so issued, was due and payable in ten equal installments, plus accrued interest, the first of which installments became due and payable on May 1, 1926, and another installment on the first day of May of each year thereafter until said assessment with interest was paid in full. Certificate No. 949 was originally in the principal amount of $424.37, of which $339.49 in principal, with interest thereon, remains unpaid at the present time.
On January 12, 1925, the said Lot No. 37, Block 22, having been reported delinquent for the nonpayment of municipal taxes amounting to $1,82 for the year 1922, was sold by the Sheriff of Kanawha County to B. W. Childress for total amount of $4.27.
Having been so requested by B. W. Childress, the Clerk of the County Court of Kanawha County, on January 14, 1926, issued a notice, directed to Gaetano Mariani, that, unless redeemed as provided by law, said clerk in behalf of Gaetano Mariani would execute and deliver a deed to the said B. W. Childress for the property. The verified return of service of this notice was executed by B. H. Newcomer, 'a citizen of Kanawha County', who stated therein that personal service of said notice was made upon Gaetano Mariani in Kanawha County, West Virginia, on January 18, 1936. However, the proof herein clearly discloses that Gaetano Mariani was not served with such notice.
Thereafter, on March 31, 1926, the said Clerk of the County Court of Kanawha County prepared and delivered to B. W. Childress a deed for the said lot.
On June 29, 1927, Childress purportedly conveyed the lot to Fred S. Bailey and Elsie Bailey, his wife, who, in turn, by deed dated August 17, 1928, purportedly conveyed the said lot to S. C. Lamp and Rachel Lamp, his wife.
On December 10, 1930, the Sheriff of Kanawha County sold the said lot to the defendant, G. T. Fogle & Company, for State and city taxes, costs, interest and penalties, totalling $22.30, delinquent for the year 1928, said taxes being assessed in the name of Fred S. Bailey. On March 8, 1932, the Clerk of the County Court of Kanawha County issued a notice directed to Fred S. Bailey and Elsie Bailey, S. C. Lamp and Rachel Lamp, B. W. Childress and D. B. Dawson, trustee, advising said persons that unless redeemed said clerk would, in their behalf, convey said lot to G. T. Fogle & Company. Said notice having been served only upon Fred S. Bailey, Elsie Bailey, S. C. Lamp, Rachel Lamp, the Clerk of the County Court of Kanawha County conveyed said lot to G. T. Fogle & Company by deed dated September 22, 1932.
The First National Company, hereinafter referred to as 'plaintiff', having subsequently acquired ownership of street paving assessment certificate No. 949, hereinbefore mentioned, instituted this suit in December, 1941. The bill of complaint, which alleges the foregoing facts, prayed that Gaetano Mariani, Sophia Richard Mariani, Samuel T. Spears, trustee, Rocco Antolini, B. W. Childress, Myrtle E. Childress, Fred S. Bailey, Elsie Bailey, S. C. Lamp, Rachel Lamp, and G. T. Fogle & Company be made parties defendant; that all of the deeds heretofore mentioned herein be set aside on the ground that Gaetano Mariani had not, in fact, been served with any notice as recited in the return of B. H. Newcomer, nor had the plaintiff, nor any of its predecessors in title to the certificate, been served with notice thereof. The bill of complaint further prayed that plaintiff's lien upon said lot be adjudicated and that said lot be sold in satisfaction thereof.
In commencing this proceeding, personal service of process was had upon B. W. Childress, Myrtle E. Childress and G. T. Fogle & Company, but process as to all the other named defendants was returned unexecuted, the return of process as to S. C. Lamp being marked '(deceased'). Pursuant to the affidavit of plaintiff's counsel, an order of publication was issued and published as to the following named defendants: Gaetano Mariani, Sophia Richard Mariani, Fred S. Bailey, Elsie Bailey and Rachel Lamp. Samuel T. Spears, trustee, and Rocco Antolini were later dismissed from the proceeding as unnecessary parties. No process of any kind was ever served upon S. C. Lamp, or his heirs or devisees, if he be dead.
G. T. Fogle & Company, hereinafter referred to as 'defendant', filed its demurrer to the bill of complaint upon the following grounds: (1) That the tax deed of March 31, 1926, heretofore mentioned, extinguished the paving lien of which said certificate was evidence; (2) that the service of the clerk's notice of January 14, 1926, was not subject to collateral attack; and (3) that the plaintiff was barred by laches to assert its lien, if any, upon the lot.
Thereafter, on April 11, 1942, plaintiff filed its supplemental bill of complaint, alleging that the list of delinquent taxes for which the property was sold on January 12, 1925, was not properly certified by the Clerk of the City of Dunbar, as provided by Section 56, which requires that the city certify the same to the Clerk of the County Court of Kanawha County 'for certification to the state auditor, and the same may be certified down by said auditor, and sold for taxes * * * in the same manner, at the same time, and by the same officer as real estate is sold for taxes * * * due the state thereon * * * .' It appears from the evidence herein that the Clerk of the City of Dunbar certified the list of property delinquent for the nonpayment of municipal taxes for the year 1922 directly to the auditor of the State rather than in the manner hereinbefore stated.
To the amended bill of complaint, the defendant filed its demurrer upon the grounds that: (1) There is a presumption that said city clerk certified the list of lands delinquent for nonpayment of taxes pursuant to the provisions of Section 36, Chapter 47, Code of 1923, authorizing such direct certification; and (2) that only Mariani court attack the sufficiency of said certification.
On July 29, 1943, the Court of Common Pleas of Kanawha County overruled the demurrers to the original and supplemental bills of complaint, and granted defendant sixty days within which it could answer. Defendant filed its answer on October 13, 1943, plaintiff consenting thereto.
The answer so filed, though argumentative in that it asserts and argues the various grounds for demurrer heretofore stated, alleges affirmatively, among other things, that '* * * since the said 8th day of October, 1932, respondent has been in open, notorious, exclusive and uninterrupted possession of said lot * * *', and that defendant had paid all taxes levied and assessed upon the lot. The answer prays for affirmative relief by cancelling plaintiff's alleged lien and removing the same as a cloud upon defendant's title. No replication, special or general, was filed by plaintiff to defendant's answer.
Thereafter evidence was taken which substantially corroborates the facts, heretofore stated, in all respects, except that no evidence seems to have been offered by either party indicating in whom, if any one, possession of the lot was vested at any time. On December 31, 1948, the Court of Common Pleas entered its decree granting the relief sought by plaintiff. It is from that decree that the Circuit Court of Kanawha County refused an appeal and supersedeas. This appeal was granted to review the decree of the Circuit Court of Kanawha County.
The twelve assignments of error made herein may be...
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