Hannah v. Charleston Nat. Bank

• Decision Date: 04 April 1903
• Citation: 44 S.E. 152,53 W.Va. 82
• Parties: HANNAH v. CHARLESTON NAT. BANK et al.
• Court: West Virginia Supreme Court

44 S.E. 152

53 W.Va. 82

HANNAH v. CHARLESTON NAT. BANK et al.

Supreme Court of Appeals of West Virginia.

April 4, 1903

Submitted Juno 18, 1902,

Syllabus by the Court.

1. When the form of procedure in the trial court does not require that the record or evidence show the value of the property in controversy, and it does not appear therein, affidavits may be filed in the Supreme Court to show a value giving jurisdiction.

2. In a trial of right of property originating in a justice's court under section 152, c. 50, Code 1899, on appeal to the circuit court the verdict finds the property to be the property of the claimant, and the court overrules a motion to set aside the verdict, and gives judgment for costs, but renders no judgment touching possession of the property. No writ of error lies for want of a final judgment.

Error to Circuit Court, Kanawha County; J. H. Couch, Special Judge.

Action by Kate P. Hannah against the Charleston National Bank and others. Judgment for plaintiff, and defendant Silverman brings error. Dismissed.

A. M Prichard and S. S. Greene, for plaintiff in error.

Flournoy Price & Smith and A. B. Littlepage, for defendant in error.

BRANNON J.

An execution issued by a justice of Kanawha county in favor of the Charleston National Bank against Pfeifer and Silverman was levied on some chattels. Kate P. Hannah filed her petition before the justice, as provided in Code 1899, c. 50, § 152, claiming the chattels as hers, and denying their liability to such levy and, the parties in interest having been summoned to try the right of the property, a trial before the justice took place, and resulted in favor of the said claimant. The case was then taken to the circuit court, and a trial was there had before a jury, resulting in a verdict finding the chattels to be the property of Kate P. Hannah. The court overruled a motion to set aside the verdict, and gave judgment for costs in favor of Kate P. Hannah. Silverman sued out a writ of error.

This case involves the question whether we must dismiss the writ of error, without considering its merits, as improperly granted, because the record does not show that the value of the property exceeds $100, or must read an affidavit filed in this court showing that fact, and go on to consider the merits. It seems to me that this is not a question of fixed law, but one of practice in this court, so that we can adopt such rule as we deem proper. Our cases say that, where the case is one in nature merely pecuniary, the record must affirmatively show that the matter is of greater amount or value than $100. McCoy v. McCoy, 33 W.Va. 60, 10 S.E. 19; Aspinall v. Barrickman, 29 W.Va. 508, 2 S.E. 795. But we can hardly say that simply from the statement that the value must appear "from the record" an affidavit is inadmissible. That was not the question in those cases. It must appear by the record as made below, if there is nothing else. A matter to be regarded in this case is that the trial in the court below did not call for proof of value. It was not relevant to the case. Value not having been shown below, no relief by writ of error can be had, though property worth thousands of dollars is involved, unless affidavits be allowed in this court. In Dryden v. Swinburn, 15 W.Va. 250, Judge Green expressed the opinion, which I think correct, that, where the form of action does not require the record to disclose the value of the matter in controversy, it may be shown by affidavit in this court; citing cases in the national Supreme Court. Judge English seems to have thought an affidavit proper at the close of his opinion in the McCoy Case, above. It is clear from many cases that the United States Supreme Court has allowed affidavits or other means of sustaining the jurisdiction. U.S. v. Freight Association, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007, so held. In Richmond v. Milwaukee, 21 How. 391, 16 L.Ed. 72, Chief Justice Taney said (what is applicable in our case) that in cases in which the value does not, according to the usual forms of proceeding, appear in pleadings or evidence in the record, affidavits have been received to show that the value is large enough to give jurisdiction. This is approved in Red River Cattle Co. v. Needham, 137 U.S. 632, 11 S.Ct. 208, 34 L.Ed. 799. It was held that, where the case is not for money, but the nature of the suit requires value to be stated in pleadings, affidavits cannot be filed on appeal; nor will they be allowed where there has been evidence of value below, and the evidence certified; but where the appeal is taken without question as to value, and it is not disclosed by the record, affidavits may be received to establish the jurisdictional amount. 1 Ency. Pl. & Pr. 716. I would not open a wide door to affidavits, because, if one side files, the other must be allowed counter affidavits, and complication might ensue. I would not admit them where the record does or ought to show value, but only in cases where it is not relevant below. I think the passage in 2 Cyc. 558, is good law: "Necessarily, it would seem, in cases in which the pleadings or record must show the jurisdictional fact, the amount or value cannot be shown by affidavits in the appellate court." In this case the proceeding was not under section 151, c. 50, Code 1899, but under section 152. If it had been under section 151, the justice or jury had to ascertain the value of the property, in order to give judgment on the bond given by the claimant to take the property into possession; but, the case being under section 152, there being no bond, there is no need of finding value. Hence the affidavit is admissible to sustain jurisdiction.

The second point made against the writ of error is that there is no judgment on which the writ can rest. The jury in the circuit court found that the property was the property of Kate P. Hannah, and the court overruled a motion to set the verdict aside, but gave no other judgment than for costs. Our Code 1899, c. 135, § 1, cl. 1, allows a writ of error only on a final judgment. So does law everywhere. "A writ of error or appeal will not lie from the verdict of a jury without an entry of judgment thereon, nor from the finding of facts or conclusions of law by the court not followed by judgment. Hence the opinion of the court, no order being entered in accordance therewith, is not reviewable." 2 Cyc. 616. The suggestion may be made that by refusing to set the verdict aside and awarding costs the court manifested intent to finally end the case; but that is not enough. "No order is final in such sense as to constitute final judgment unless it disposes of the main case so far as there is power in the court to decide upon the questions presented by the issue, no matter how clearly and decisively the order may indicate what the ultimate judgment may be. Until ultimate judgment, the case is not finally disposed of inasmuch as the court may change its rulings, award a venire de novo, or grant a new trial." Elliott, Appel. Pro. § 83. "Final judgment must show intrinsically and distinctly, and not inferentially, that the matters in the record have been determined in favor of one of the litigants, or that the rights of the parties have been adjudicated." Scott v. Burton, 55 Am.Dec. 782, 6 Tex. 322. But an authority binding us is Damron v. Ferguson, 32 W.Va. 33, 9 S.E. 39, dismissing a writ of error as premature because taken...