Morgan v. Ohio River R. Co.
| Decision Date | 19 March 1894 |
| Citation | 19 S.E. 588,39 W.Va. 17 |
| Parties | MORGAN v. OHIO RIVER R. CO. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. A judgment of a circuit court upon a writ of certiorari reversing a judgment of a justice, setting aside the verdict of a jury on which the judgment was based, and granting a new trial, is a final judgment, though it retain the case for retrial, and cannot be set aside on mere motion at a subsequent term.
2. After such judgment, the objection that the certiorari was not applied for within 10 days after the judgment comes too late to avail.
3. A writ of error by one party brings up the entire record, and if any error exist to the prejudice of an appellee, it may be corrected, whether it be in the judgment to which the writ of error was taken or another in the case.
4. A writ of certiorari is taken not within 10 days after the judgment. The defendant to it will be given the benefit of that defense in this court, though the record merely show that the case was heard in the circuit court on the record and proceedings, without showing any motion to quash or dismiss.
5. Where such writ is not applied for within 10 days but within 90 days after the judgment, and the record shows no excuse for not sooner applying, no presumption arises from the mere grant of the writ that good excuse was otherwise shown. The excuse or cause for not applying within 10 days for the writ must always appear in writing as part of the record.
Error to circuit court, Jackson county.
Action by James B. Morgan against the Ohio River Railroad Company. From a judgment for plaintiff, defendant brings error. Reversed.
V. B Archer and Warren Miller, for plaintiff in error.
N. C Prickitt and R. F. Fleming, for defendant in error.
BRANNON P.
James B. Morgan recovered a judgment for money against the Ohio River Railroad Company upon the verdict of a jury before a justice, and the company obtained a writ of certiorari from the circuit court of Jackson county to reverse said judgment for error; and the circuit court did reverse it, and set aside the verdict, and granted a new trial, and retained the cause for retrial. At a subsequent term the circuit court set aside its former order reversing the judgment and verdict, and dismissed the writ of certiorari as improvidently awarded, because, when applied for, more than 10 days had elapsed since the judgment.
Our attention is at once arrested by the legal question whether the circuit court could at a later term set aside its judgment rendered at a former term, which had reversed the judgment of the justice, and set aside the verdict, and granted a new trial. During the term, the proceedings of the court are said to be in its breast, and it may modify or set them aside. Cawood's Case, 2 Va. Cas. 527; Kelty v High, 29 W.Va. 381, 1 S.E. 561. After the close of the term, the court may modify or set aside any judgment or decree made at a former term, if it be interlocutory and not final in character. 1 Black, Judgm. § 308; Wright v. Strother, 76 Va. 857. But, after the term, the court has no power to modify or annual any final judgment or decree, except in law cases for certain causes by writ of error coram nobis or motion, under chapter 134 of the Code. and in chancery for certain causes, and in certain cases by bill of review or motion under said chapter. The final judgment or decree ends the case, and neither the parties nor the subject-matter in litigation are any longer before the court, and, therefore, any subsequent action in the case, being without parties or subject-matter before the court, is null and void unless made under some lawful mode of review. Green v. Railroad Co., 11 W.Va. 686; Ruhl v. Ruhl, 24 W.Va. 279; Crim v. Davisson, 6 W. Va. 465; Hall v. Bank, 15 W.Va. 328; Battaile v. Maryland Hospital, 76 Va. 63; Johnson v. Anderson, Id. 766; 1 Freem. Judgm. § 96. As to setting aside judgments of higher courts, see 7 Rob. Pr. (New) 127. (I speak above only as to the time of making orders affecting former ones, not of their correctness, nor of the mode, where alteration is proper, in which it is to be effected; it sometimes requiring in chancery a petition for rehearing, sometimes only a motion.)
Then what is the character of the judgment of the circuit court rendered upon the writ of certiorari reversing the judgment of the justice? Was it final or only interlocutory? If final, the judgment at a subsequent term annulling the former judgment and dismissing the certiorari is erroneous; yes, void, under the principles stated above. The action was taken on simple motion, not by any process of review. It was not, and could not have been, on writ of error coram nobis or motion in lieu of it, under Code, c. 134, nor motion to reverse a judgment by default, under said chapter, as the judgment was rendered upon the appearance of both parties. That this judgment had the quality of finality is clear. It ended the certiorari as an appellate process upon the facts involved in the record. The judgment annulled the justice's judgment and the verdict, leaving nothing more to be done in the certiorari; and this is the test of finality. Cocke v. Gilpin, 1 Rob. (Va.) 27; Vanmeter v. Vanmeter, 3 Grat. 148; Camden v. Haymond, 9 W. Va. 687; Manion v. Fahy, 11 W.Va. 493; Ryan v. McLeod, 32 Grat. 367; Rawlings v. Rawlings, 75 Va. 83. The new trial of the action commenced before the justice was upon another cause of action than that on which the certiorari was based, which was only error in the former trial. It was not a retrial or further trial of the certiorari, but of the former action. At most it was only to execute the order awarding a new trial, if even that could be said; and this would not detract from the finality of the judgment, as it would not be considered as an action in the certiorari. The ancient original writ of certiorari has in its history been put to diverse uses, and the law touching it is, in some respects, complicated. In England, it was used before judgment as a process by which a superior court removed from inferior tribunals causes pending before them, in order that more sure and speedy justice be done. Bacon, Abr. tit. "Certiorari," A; Bouv. Law Dict. tit. "Certiorari." It was used after verdict and before judgment in Mackaboy v. Com., 2 Va. Cas. 268; but its use to transfer cases before judgment from an inferior to a superior court has been exceedingly limited in the Virginias, and I may say it is not at all so used in this state. This use is condemned in the Dryden Case, 20 W.Va. 105, and 15 W.Va. 270. In such a case it could be properly said that any order pending the proceeding made by the superior court would be interlocutory. But the original writ of certiorari now so extensively used, and performing such important functions, in West Virginia, (the common-law original writ of certiorari, enlarged in its functions and efficacy by chapter 110, § 2, Code), is an appellate writ,--the counterpart of the writ of error. The writ of error corrects errors of record committed by courts of record proceeding according to the course of the common law, whilst the original writ of certiorari corrects the errors of inferior tribunals in matters where the proceeding is not according to the course of the common law, and where no appeal or writ of error lies. Mackaboy v. Com., 2 Va. Cas. 268; Wingfield v. Crenshaw, 3 Hen. & M. 253; Cunningham v. Squires, 2 W. Va. 422; Dryden v. Swinburn, 15 W.Va. 234, 20 W.Va. 89; Board v. Hopkins, 19 W.Va. 84. (I do not refer to the ancillary writ of certiorari used by appellate courts to bring us more perfect record on suggestion of diminution.) It seems that it has ever been the law that when it is proper to review the proceedings of inferior tribunals, and the law has not provided redress by appeal, writ of error, or other process, resort may be had to this writ of certiorari to prevent a failure of justice. Meeks v. Windon, 10 W.Va. 180; Poe v. Machine Works, 24 W.Va. 517; Beasley v. Town of Beckley, 28 W.Va. 81; Mackaboy v. Com., 2 Va. Cas. 268; Harris, Cert. § 1. So wide was the scope of the writ before the enactment of section 2, c. 110, Code (Ed. 1887 and 1891), that though that section retains it as it was aforetime, and purports to apply it to additional cases, yet it may be questioned whether it made it applicable to any additional cases, though, beyond question, section 3 does widen its remedial agency in enabling it to correct errors in matters or points where before the statute it was ineffectual, as in the instance of review of ev idence on matters of fact. Before that statute, the superior court upon certiorari could review all questions of jurisdiction and the regularity of proceeding, and decide all questions of law and fact, and render such judgment, in case of reversal, as the lower tribunal ought to have rendered; but it was at least doubtful whether the court could do what appellate courts can do on writs of error,--consider evidence and reverse findings on facts by jury or court in proper cases (Alderson v. Commissioners, 32 W.Va. 458, 9 S.E. 863); but now the statute provides for embodying in the record evidence and all questions passed upon on the trial in the tribunal below, and requires the court above to pass upon all questions arising on law and evidence, and render such judgment as the court should have rendered, without remanding. Certiorari being thus an appellate proceeding,--a proceeding in error,--it has for its object the review and reversal of the former decision; its basis or gravamen is the supposed error in that decision, and therefore, where a judgment of reversal is rendered, its mission is ended, the erroneous decision which it was invoked to abrogate is gone,...
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