Newhart v. Pennybacker, No. 8825.

• Court: Supreme Court of West Virginia
• Writing for the Court: RILEY
• Citation: 200 S.E. 350
• Parties: NEWHART et al. v. PENNYBACKER,Judge, et al.
• Decision Date: 06 December 1938
• Docket Number: No. 8825.

200 S.E. 350

NEWHART et al.
v.
PENNYBACKER, Judge, et al.

No. 8825.

Supreme Court of Appeals of West Virginia.

Dec. 6, 1938.

Syllabus by the Court.

1. A statute in derogation of the common law must be strictly construed in the light of the purposes for which it was enacted.

2. Where a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such absurdity, will be made.

3. A law or decretal judgment, based on evidences of indebtedness specified in Chapter 89, Acts of the West Virginia Legislature, Second Extra. Session, 1933, amending Code 1931, 56-4, is neither void nor voidable simply because it does not recite a compliance with the provisions of said act of the legislature.

4. A judgment, valid on its face and rendered by a court of general jurisdiction having jurisdiction of both parties and subject matter, is not open to collateral attack.

5. A petition in prohibition, seeking to prohibit the execution or enforcement of a judgment valid on its face, is a collateral attack.

Original prohibition proceeding by L. D. Newhart and others against E. B. Penny-backer, Judge, and others to prevent the enforcement of a judgment rendered in a proceeding on a note by notice of motion for judgment, wherein the petitioners were defendants.

Peremptory writ refused.

K. C. Moore and T. M. McIntire, both of Parkersburg, for plaintiffs.

James B. Randolph and H. W. Russell, both of Parkcrsburg, for defendants.

RILEY, Judge.

Under the original jurisdiction of this Court, L. D. Newhart and Daisy Newhart filed their petition praying for a writ of prohibition to prevent the enforcement of an $850 judgment rendered January 26, 1938, by the Circuit Court of Wood County, in a proceeding on a note by notice of

[200 S.E. 351]

motion for judgment, wherein E. A. Grow, administrator of the estate of Daniel Row-ell, deceased, was plaintiff, and petitioners herein were defendants.

The petition is filed on the theory that the judgment is void because it was not obtained in compliance with Chapter 89, West Virginia Acts of the Legislature, Second Extra. Session, 1933, amending Code 1931, 56-4. The act of the legislature in question provides, in part, as follows:

"Section 71. In every action at law, proceeding or suit in equity, instituted on and after July second, one thousand nine hundred thirty-four, in a court of record in this state, for the collection of any bonds, notes, or other evidences of debt, the plaintiff or claimant shall be required to allege in his pleadings, or to prove by affidavit or otherwise at any time before final judgment or decree is entered:

"(1) That such bonds, notes or other evidence of debt have been assessed for taxation for each and every tax year on the first day of which he was the owner of same, not exceeding five years prior to that in which the action, suit or proceeding was instituted and not in any event, for any period beginning earlier than the first day of January, one thousand nine hundred thirty-three, or

"(2) That such bonds, notes, or other evidence of debt constituted a part of the capital employed in the business of such plaintiff or claimant and were assessed or taxed as such, or otherwise assessed or taxed as prescribed by law, or

"(3) That the plaintiff or claimant has not paid, or is unable to pay, the taxes and interest and penalties, if any, on such bonds, notes or other evidences of debt, but is willing for the same to be paid out of his first recovery thereon, or

"(4) That such bonds, notes or other evidence of debt sued upon are not taxable under the law in the hands of the plaintiff or claimant, or are otherwise exempt from taxation; and no judgment or decree of a court of record rendered in an action, suit or proceeding instituted on and after the date aforesaid, shall be valid unless the allegation herein required was made, or unless the proof herein required was adduced before final judgment or decree was entered.

"When in any such action at law, suit in equity or proceeding, it is ascertained that there are unpaid taxes, including interest and penalties, if any, on the evidence or evidences of debt sought to be enforced, and the plaintiff or claimant makes it appear to the court that he has not paid, or is unable to pay, said taxes, including interest and penalties, if any, but is willing for the same to be paid out of his first...