Ratcliffe v. County Court Of Wayne County

• Decision Date: 19 March 1892
• Citation: 36 W.Va. 202,14 S.E. 1004
• Court: West Virginia Supreme Court
• Parties: Ratcliffe v. County Court of Wayne County.

14 S.E. 1004

36 W.Va. 202

Ratcliffe

v.County Court of Wayne County.

Supreme Court of Appeals of West Virginia.

March 19, 1892.

County Okders—Refusal of Treasurer to Pay —Liability of County Court — Remedies of Creditors.

1. When the county court has provided a fund in the hands of thesherlfl, exofficio thecounty treasurer, for the payment of claims against the county, and has caused tobe issued and delivered to the creditor an order for his claim in form or effect as provided in section 87, c. 89, of the Code, and tho sheriff, without fault on the part of the court, fails or refuses to pay the order, tho creditor's remedy is against the sheriff. Section 39, c. 39, Code.

2. The taxpayers of the county are not to he treated, directly or indirectly, as the sureties of the sheriff, without fault on the part of thecounty court.

3. Case in which these principles are applied.

(Syllabus by the Court.)

Error to circuit court, Cabell county.

Mandamus proceedings by G. F. Ratcliffe, administrator of C. H. Burgess, deceased, against the county court of Wayne county, to compel such court and its commissioners to levy a tax for certain purposes. From a judgment for plaintiff, defendant brings error. Reversed.

Campbell & Holt, for plaintiff in error.

Okey Johnson and Z. T. Vinson, for defendant in error.

Holt, J. On the 18th day of December, 1890, the circuit court of Cabell county awarded against the county court of Wayne county a peremptory writ of mandamus, commanding said county court and the commissioners of the court by name to levy a tax upon the taxable property within the county of Wayne sufficient to pay the plaintiff, G. F. Ratcliffe, administrator of C. H. Burgess, deceased, the sum off 1, 121.88, withinterest fromthe 11th day of July, 1887, and set aside said sum to pay the same. Neither party requiring a jury, the case was heard arid tried by the court, and to the judgment rendered the county court of Wayne has obtained this writ of error and supersedeas.

During the trial the plain tiff offered in evidence what purported to be a printed record of the case of Ratlin* v. County Court, 33 W. Va. 94, 10 S. E. Rep. 28, which the court received in evidence against the objection of defendant, and this is the first error assigned. Our rule of practice in such cases is given in Nutter v. Syden-stricker, 11 W. Va. 535:."Where a easels tried by the court in lieu of a jury it is not error in the court to hear illegal testimony, the court being fully competent to discard the illegal evidence." The court must in some way know what the evidence is before it can pass upon its admissibility. It might in some cases be more convenient to pass upon the question expressly at some stage during the progress of the trial, for, if discarded, the plaintiff might be able to supply it, or cure the defect, for the question in this courtis, "Was the judgment of the court (below) warranted by theevidence?" Yet by our practice such express ruling on the admissibility of evidence is not required, but the appellate court will simply inquire whether or not there is sufficient competent evidence in the record to sustain the judgment of the court below, treating the appellant as a demurrant to the evidence.

The proceedings in mandamus are regulated by chapter 109 of the Code, and are assimilated, as far as may be, to the pleadings and practice in other actions. The alternative writ may be awarded by the circuit court or the judge thereof in vacation. Section 3, c. 123, Code. By writ of mandamus the circuit court may enforcethe performanceof any legal duty of the county court. Section 45, c. 39, Code. Section 43, c. 39, Code, provides for the enforcement of payment of claims against the county by writ of mandamus. In such cases the person entitled to the money may petition any court having jurisdiction, or a judge thereof in vacation, for a writ of mandamus to be directed to the county court of said county, commanding it to provide for the pay-merit of such money by and out of the next county levy to be made in their county, or show sufficient cause why they should not be compelled to do so, which writ shall be returnable as the court or judge awarding the same may order. Upon the said writ such proceedings shall be had as are prescribed by law in other like cases, and the court (but not the judge in vacation) may, if the case justify it, award a peremptory mandamus directed to such court, to provide in the next county levy to be thereafter made for what shall appear to be due to the said complainant with interest and costs." (1) "When a writ of mandamus is issued, the return thereto shall state plainly and concisely the matter of law or fact relied on in opposition tothecomplaint." (2) "The complainant may thereupon demur to the re turn, or plead specially thereto, or both." (3) "The defendant may reply to, take issue on, or demur to, the return or pleas of the complainant." Code, c. 10!). The petition, supported by the affidavit of the party, contains the suggestion of facts to justify the issuing of the writ. "The alternative writ of mandamus should set out all the facts necessary to make out the plaintiff's case, with the same certainty and precision that is required in a declaration in an ordinary suit; but such facts mav be stated by way of recital." Fisher v. Mayor, 17 W. Va. 628. When the alternative writ has been awarded, the petition has performed its function. "The petition and rule [if awarded] constitirte no part of the pleadings in cases of mandamus." Fisher v. City of Charleston, 17 W. Va. 595. Issues of fact are determined as in othercases. In this case the alternative writ giving the facts as suggested and represented by the complainant was issued by the judge in vacation on 10th January, 1890, and is as follows: "To the County Court of Wayne County: Whereas, it is represented tothe undersigned judge of the circuit court of Wayne county that you, in August, 1875, purchased a farm of one J. A. Morris, and that you took a deed from said Morris for said farm, and in payment thereof issued to him on the 8th day of Sept., 1875, two several orders, Nos. 332 and 333, for $1,250 each, with interest on each sum from the 1st day of December, 1875, —the first order payable out of the levy of 1875, and the second out of the levy of 1877; that in August, 1875, you at once took possession of said poor farm so purchased as aforesaid, and have used and occupied iteversince; that from time to time payments have by the sheriff, on whom said orders were drawn, been made; that without any fault of the party holding said order, to wit, C. H. Burgess, who it is represented is now dead, and his administrator, G. F. Batcliffe, is the holder of said orders for the estate of said C. H. Burgess, deceased, the payment of said orders were enjoined in an injunction suit by one Booten v. H. F. Bowen, Sheriff of Wavne Countv, and others, from October, 1878, to Feb., 1887; that all of the amounts of said orders had been paid to the holder thereof, excepting the interest accumulated during the pendency of said injunction, except the sum of $151.62; that yon settled with the sheriff, who should have paid said orders but for the injunction. After the injunction was dissolved, to wit, in July, 1887, you failed and refused to charge them any interest on said order whilethesaid injunction was pending, and exonerated them, the said sheriffs, from paying any further sum on said orders, and agreed and admitted in your settlements with said sheriffs that there were no funds left in their hands, applicable to the payment of said orders oreither of them; and that G. F. Rat-cliffe, administrator of C. H. Burgess, the holder, and for his decedent, the owner of said orders, on the 11th day of July, 1887, by his attorney, presented to you, and demanded payment thereof, including interest on the same, while said injunction was pending: and that you then and there admitted your liability to pay the balance due on said orders, excluding the accumulated interest while the said injunction was pending, but deemed that you were not liable to pay interest on said orders during the pending of said injunction, and ascertained the balance, excluding said interest, to be $151.62, for which you then and there gave a draft, payable to said O. F. Ratcliffe, administrator of C. H. Burgess, deceased, who refused to accept the same in full, but accepted it as a general credit on his order against you; that you agreed and admitted that, if you were liable to be charged interest on the said orders while the said injunctions were pending, that you owed the plaintiff on one of said orders the sum of $473.73, and on the other the sum of $648.15, on the said 11th day of July, 1887, aggregating $1,121.88, and...