Lemley v. Wetzel Coal & Coke Co.

Decision Date26 March 1918
Docket Number48.
Citation95 S.E. 646,82 W.Va. 153
CourtWest Virginia Supreme Court

Submitted March 5, 1918.

Syllabus by the Court.

The power of a court having jurisdiction over a particular subject-matter to render a judgment or decree affecting the same cannot be attacked collaterally, unless it appears from the record of the proceeding in which the judgment or decree is entered that the court acted without jurisdiction.

Where the jurisdiction of a court to render a particular judgment or decree depends upon the existence of certain facts, and the judgment or decree entered recites that the court found such facts to exist, such finding cannot, in a collateral proceeding, be contradicted or questioned by evidence aliunde.

The decree of a circuit court, authorizing the sale of lands of an infant, upon the petition of the guardian of such infant under the provisions of section 12 of chapter 83 of the Code cannot, in a collateral proceeding, be attacked for want of jurisdiction by showing, by evidence outside of the record of the proceeding, that notice of the filing of said petition was not given to the infant, where the decree on its face recites that notice was given as required by law.

Certified Question from Circuit Court, Wetzel County.

Suit by J. A. Lemley against the Wetzel Coal & Coke Company. Demurrer to bill overruled, and question as to the sufficiency of the bill on demurrer certified by the circuit court. Decree reversed, and demurrer sustained, and cause remanded with leave to amend; otherwise with directions to dismiss.

Larrick & Lemon, of New Martinsville, for plaintiff.

Waitman H. Conaway, of Fairmont, for defendant.


This suit is prosecuted for the purpose of canceling and annulling certain deeds which it is claimed constitute clouds upon the plaintiff's title to the coal in a certain tract of land situate in Wetzel county. In the month of October, 1901, Martha Curry, Silas H. Curry, William C Curry, and E. E. Curry, all infants under the age of 14 years, being the owners of a small tract of land in Wetzel county, by their guardian, Levi K. Hoge, filed a petition in the circuit court of that county, praying for authority to make a sale of the coal underlying said land, in accordance with the provisions of section 12 of chapter 83 of the Code (sec. 3972). On the 8th day of October, 1901, an order was entered by the circuit court, ascertaining that notice had been given as required by law in the following language:

"And the said petitioner also produced and filed a notice given by him to said defendants that on this day he would file said petition and ask that the same be heard; and. it appearing to the court that the said notice has been duly served on all said defendants, on motion of said petitioner, it is adjudged, ordered, and decreed that the said petition be and the same is now here filed, and said notice filed, and this proceeding docketed."

The court thereupon appointed a guardian ad litem for the infant defendants, and proceeded to a hearing upon the petition. After hearing the evidence introduced in support of the petition in the presence of the guardian ad litem, the court adjudged that it was to the interest of the infant defendants to make sale of the coal in said land, and authorized the guardian to make such sale. The sale was accordingly made by the guardian, reported to the court, and by it confirmed. After the infants became of age they sold and conveyed their interest in the land to the plaintiff, and he prosecutes this suit to set aside the deed made by the guardian of the infants conveying the coal, as well as certain deeds made thereunder, as constituting clouds upon the title acquired by him. The question certified to this court is the sufficiency of the bill on demurrer.

The bill proceeds upon the theory that the deed made by the guardian, and all deeds made subsequently thereto, having that deed for their basis, are absolutely void upon the alleged ground that no notice was given to the infants of the filing of the petition to sell their land, which fact is sought to be made to appear from a copy of the order of the county court, appointing the petitioner guardian of the infants entered upon the same day, upon which the petition to sell the lands was filed in the circuit court. Can the finding of the circuit court, as shown by its decree as above recited, be questioned in this way? This is not a bill to review the proceeding had for the sale of this interest, nor is it a direct attack upon said proceeding, but it proceeds entirely upon the theory that the circuit court obtained no jurisdiction to sell the infants' land, and that all proceedings had by it were coram non judice. The attempt is made to show this lack of jurisdiction, not by anything contained in the record of the proceeding in the circuit court, but by a record from the county court, showing the appointment of the guardian on the very day upon which the proceeding was instituted in the circuit court, and from this it is argued that the recital of the finding of the court in its decree that notice had been duly served is false.

It is a general rule that the orders and decrees of a court...

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