Newman v. Mollohax.

• Decision Date: 01 May 1877
• Citation: 10 W.Va. 488
• Parties: Newman v. Mollohax.
• Court: West Virginia Supreme Court

10 W.Va. 488

Newman

v.Mollohax.

Supreme Court of Appeals of West Virginia.

Decided May 1, 1877.

A joint judgment, in a suit in which an attachment had issued against all the defendants as non-residents, having been rendered against, several of the defendants, one of them, who had plead, took an appeal, and the Conrt of Appeals affirmed the judgment. Another of the defenGlants against whom this joint judgment was rendered, a non-resident, who had not plead, after due notice, then moved the circuit court who had rendered the judgment to reverse and annul the same, because the order of publication against him had not been made in the manner required by law, and because there had been a personal judgment against him, though he had never been served with process, and for other errors apparent on the face of the record. Held:

That the circuit court properly overruled his motion, as after the affirmance of the judgment by the Court of Appeals, no defendant could make a motion in the circuit court to reverse or modify the judgment, though the record of the case in the Court of Appeals fails to show that the defendant making the motion was notified of the appeal, it being conclusively presumed he was so notified, and that all the questions raised by his motion had been considered and decided by the Court of Appeals when it affirmed the joint judgment.

This ease was brought into this court by a writ of error and supersedeas allowed upon the petition of John Green Newman, to a final order and judgment of the circuit court of Kanawha county, rendered on the 16th day of July, 1872, on a motion made by him to reverse, as to himself, a judgment rendered by said court on the 18th day of April, 1866, in favor of Charles Mollohan, against said Newman and others, in a certain action of trespass then pending in said court.

Green, President, delivered the opinion of the court, in which may be found a sufficient statement of the case.

The record does not disclose what Judge presided in the circuit court at the time of the trial below.

Wm. A. Quarrier, for defendant below and plaintift in error, referred the Court to:

Code Va., ch. 170, §12; O'Brien v. Stevens, 16 Gratt., 613; Davis v. Commonwealth, 13 Gratt., 139; Code W. Va., ch. 134, §6; Cons. W. Va. of 1863, art, 6, §9; 2 Tuck. Com., 333; 2 Wm.'s Saund., 101; 4 Ranch, 390; Vandiver v. Roberts, 4 W. Va., 493.

James H. Ferguson and W. Mollohan, for plaintiff below and defendant in error, relied upon the following authorities:

8 Bac. Ab. (Phil. Ed., 1840); 8 "Statutes," 251; Dwarris, 632; Magdalen College case, 11 Rep., 67, 74, 75; Aeheson v. Everett, Cowp., 382, 391, Sedgwick on Stat, and Const, Law, 359; 3 Stark. Ev., 1043, 1277; 3 Tho. Co. Litt, 328; Field v. Gibbs, 1 Pet, C. C. R, 155; Caldwell v. Shields & Somerville, 2 Rob., 305; Carrie's ex'rs v. Campbell, ! Wash., 153; Buckingham, &c, v. McLean, 13 How., 150; Ferrar & Brown v. United States, 3 Pet, 459; Gracie v. Palmer, 8 Wheat, 699; Pollard & Pickett v. Dwight el al., 4 Cranch, 428; Bank of the Valley v. Bank of Berkeley, 3 W. Va. 386; Fee v. Big Sand Iron, Co., 13 Ohio St., 563; Code Va, ch. 125, §16, 21; O'Brien et al v. Stevens et al, 11 Gratt., 610; Code Va., ch. 182, §15; Piatt v. Howland, 10 Leigh, 507, 510; Barbee & Co. v. Pannill, 6 Gratt., 442; Lenows v. Lenow, 8 Gratt, 349; Meadows v. Justice, 6 W. Va. 198; 2 Field's Pr., 1188 et seq.; Graham & Scott v. Graham & Lane, 4 Munf., 205; Coal River Navigation Co. et al. v. Webb, 3 W. Va. 438.

62 The Court having requested a further argument, Wm. A. Quarrier, for plaintiff in error, cited the following authorities:

Lewis v. Botkin, 4 W. Va., 533; Myriek v. Adams, 4 Munf., 366: Freeman on Judgments, §127; Bryland v. Bryland, 18 Ill, 552; Broomfield v. Dyer; Moss et al v. Moss' adm'r, 4 H. & M., 299; Pittman v. Planters' Bank, 2 Miss., 217; Code Va, ch. 182, §15; Code W. Va., ch. 134, §6; Outram v. Moorehood, 3 East, 346; 6 Rob. P r., 476; Cleaton v. Chambliss, 6 Rand., 93; Craddoek v. Turner's adm'r 6 Leigh, 128.

James LI. Ferguson and W. Mollohan, for defendant in error, in reply, cited the following additional authorities:

Harvey v. Skipwith, 16 Graft, 410; Griffin's ex'r v. Cunningham, 20 Gratt., 32, especially Judge Christian's opinion, on page 50; Reid's adm'r v. Striders' adm'r, 7 Gratt, 76; Lanier et al. v. Cocke et al., 6 Munf., 580.

This was an action of trespass brought in March, 1865, in the circuit court of Kanawha county, by the plaintiff, Charles Mollohan, against the defendants, John Green Newman, John N. Clarkson, Thomas B. Swann, Joel S. Quarrier, Nicholas Fitzhugh and James F. Lewis, all non-residents of the state of West Virginia. And it was accompanied by an attachment regularly issued against the property of each and all of the defendants, which was levied on property of each of them. The plaintiff, a citizen of Ohio, was arrested when General Wise, in command of a confederate force in July, 1861, occupied Kanawha county, and had been imprisoned till October, 1861; the defendants were soldiers under the command of General Wise, and they, or some of them, as such, had more or less connection with the arrest and imprisonment of the plaintiff, Mollohan. The order of publication against the defendants was regular- ly made on the first Monday in April, 1865. Its publication was commenced on the 26th day of April, 1865, on which day, a copy of it was posted at the front door of the court house. And on the first Monday in June, 1865, an entry was made at rules, reciting that the order of publication had been duly published and posted according to law, on the motion of the plaintiff, by his attorney, the case was set for trial at the next term. On the 17th day of June, for reasons appearing to the court, the case was continued to the next term. On the 12th day of December, 1865, the following entry was made:

" This day came the parties, by their attorneys, and thereupon, on motion of the defendants, and for reasons appearing to the court, this case was continued to the next term, but at their costs."

On the 17th day of April, 1866, this entry was made:" This day came as well, the plaintiff, by his attorney, as the defendants, Joel S. Quarrier, James F. Lewis and Thomas B. Swann, by their counsel, and also the defendant, Nicholas Fitzhugh, in proper person. And thereupon the defendant, Nicholas Fitzhugh for himself, pleaded not guilty, and put himself upon the country, and the plaintiff likewise. He also filed a special plea in writing, to which special plea the plaintiff demurs, which demurrer being argued and considered, was sustained by the court; and the defendants, Quarrier, Lewis and Swann, plead not guilty, and put themselves upon the country, and the plaintiff, likewise; the defendant, Swann, tendered a special plea in writing, and the defendants, Quarrier and Lewis, jointly tendered a special plea in writing, to which two special pleas the plaintiff objected, which objections being argued and considered, were sustained by the court, and said special pleas rejected; and on motion of the defendant, Joel S. Quarrier, the trial on the issue thus made was continued, as to him, until the next term; and by consent, the same was continued as to the defendant, Swann; and the trial on the issue as to the defendants, Fitzhugh and Lewis, and on the order of enquiry as to "the defendants, Newman and Clarkson, was then proceeded in, and thereupon came a jury, who being selected by lot, were impanelled and sworn the truth to speak upon the issue joined as to the defendants, Fitzhugh and Lewis, and well and truly to assess the plaintiff's damages as to the defendants, Clarkson and Newman, and also to support the Constitution of the United States, and of this state, who, having heard the evidence in full, and the arguments of counsel in part, were adjourned till the next day."

The next day they found the defendant, James F. Lewis, guilty, and assessed the plaintiff's damages against him and John N. Clarkson and John Green Newman, at the sum of $3,000; and they further found the defendant, N. Fitzhugh, not guilty. Whereupon, James F. Lewis, by his attorney, moved the court to set aside said verdict and grant him a new trial, which motion was overruled, and judgment entered that the plaintiff recover against the defendants, Lewis, Clarkson and Newman, his damages aforesaid, with interest thereon from April 18, 1866, and his costs. The defendant, Lewis, filed two bills of exceptions. The first was to the rejection of his and Quarrier's joint special plea, which was, "that the trespass in the declaration mentioned and described was committed more than one year anterior to the institution of this suit." And the second was to the overriding of his motion for a new7 trial. This bill of exception sets forth all the facts, and shows the character of the case to be as hereinbefore stated.

In 1868, Lewis appealed from this judgment of the court, and assigned as errors. First, that it was error to reject the plea of the statute of limitations, the act of March 1, 1865, excluding the time from the 17th day of April, 1861, to March 1, 1865, he alleging was unconstitutional, when the bar of the statute of limitations was complete and perfect when this act passed, and that if it were constitutional, the plea of the statute of limitations ought nevertheless to have been received, and the plain-tiff' should have replied specially this act of March-1865. And he assigned as another error that the verdict of the jury was not warranted by the facts proven, insisting that the late war had been recognized by all the departments of the government as a civil war, and as a consequence all the rights, powers, privileges and duties that pertain to such a state of things, belonged to each beligerant party. And he further insisted that even if this were not the case, the facts proven did not make him a trespasser, his connection with then not being such as under any circumstances ought...