Shelton v. Sydnor

Citation102 S.E. 83
PartiesSHELTON et al. v. SYDNOR, Commonwealth's Atty.
Decision Date22 January 1920
CourtSupreme Court of Virginia

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Jurisdiction.]

Error to Circuit Court, Hanover County.

W. R. Shelton and C. S. Luck, members of the Board of Supervisors of Hanover County, were allowed certain compensation for services rendered in the supervision of the opening and repairing of public roads and the construction of bridges, and from the order of the Board of Supervisors allowing their claims, and directing warrants to be issued, Walter Sydnor, Attorney for the Commonwealth for the County, appealed to the circuit court, which set aside the order, and the Supervisors bring error. Judgment affirmed, without prejudice to the Supervisors to receive legal compensation.

Haw & Haw, of Richmond, for plaintiffs in error.

Walter Sydnor, of Richmond, for defendant in error.

BURKS, J. The plaintiffs in error are members of the board of supervisors of Hanover county. At a meeting of the board held on December 1, 1917, the board allowed to each of them an account against the county as compensation, at the rate of $3 a day, for services rendered in the supervision of the opening and repairing the public roads, and the construction of bridges of said county. The allowance was made under the provisions of an act of assembly approved March 18, 1916, amending section 848 of the Code of 1904. Acts 1916, p. 505. From the order of the board allowing these claims and directing warrants to be issued therefor, an appeal was taken by Walter Sydnor, attorney for the commonwealth for said county, pursuant to section 836 of the Code. Upon the hearing of the appeal, the circuit court of Hanover county "set aside, revoked, and annulled" theorder of the board allowing said accounts, on the ground that the act aforesaid of March IS, 1916, was in violation of paragraph 14 of section 63 of the Constitution, forbidding the passage of any local, special, or private act increasing the salaries, fees, percentages, or allowances of public officers during the term for which they were elected or appointed. To that order of the circuit court this writ of error was awarded. The case appears to have been heard in the circuit court without evidence, but upon the admissions of the parties. Some of these admissions appear in the final order appealed from, but the record does not state that those were all that were made. It simply states that the court considered the record in the cause and "the admissions of fact of the case." The final order appealed from does, however, state expressly that the appeal was "taken December 1, 1917, " which was the very day that the supervisors met and made the order allowing the accounts. The appeal was taken under section 836 of the Code (1904), which provides, amongst other things, that—

"When any claim has been allowed by said board against the county, which, in the opinion of said attorney [for the commonwealth] is improper or unjust * * * the said attorney shall appeal from the decision of said board to the circuit court of the county, causing a written notice of such appeal to be served on the clerk of such board, and upon the party in whose favor the said claim is allowed within thirty (30) days after the making of such decision."

It was earnestly insisted both In the petition for the appeal and in the oral argument before us that the perfection of the appeal by the notice required by statute was essential to the jurisdiction of the circuit court, and that the record fails to disclose that the notice was given in the time required by law, and that a voluntary appearance to the appeal after the lapse of 30 days could not cure the defect and confer jurisdiction on the court.

Jurisdiction, it is said, is the power to adjudicate a case upon the merits and dispose of it as justice may require. The Resolute, 168 U. S. 437, 18 Sup. Ct. 112, 42 L. Ed. 533. This necessarily involves the idea that there must be jurisdiction of the subject-matter of the litigation and also over the parties thereto. If either is wanting the resulting judgment is void. But the rights and powers of the parties and of third persons with reference to the mode of acquiring the two kinds of jurisdiction are not the same. Jurisdiction of the subject-matter can only bo acquired by virtue of the Constitution or of some statute. Neither the consent of the parties, nor waiver, nor acquiescence can confer It. Nor can the right to object for a want of It be lost by acquiescence, neglect, estoppel, or in any other manner. School Trustees v Stacker, 42 N. J. Law, 116; Springer v. Shavender, 118 N. C. 33, 23 S. E. 976, 54 Am. St Rep. 708; O'Brien v. People, 216 lit 354, 75 N. E. 108, 108 Am. St. Rep. 219, 3 Ann. Cas. 966. It is the right of the state to say of what classes of cases its courts shall have jurisdiction, and to exclude all others, and it is the duty of litigants who invoke the jurisdiction of a court to bring themselves within some class of the cases of which the court is given jurisdiction. O'Brien v. People, supra. A judgment rendered by a court which had no jurisdiction of the subject-matter is a nullity, and may be so treated by all persons anywhere at any time and in any manner. It has no existence as a valid judgment. 1 Black on Judgments, § 278, and cases cited; Building Ass'n v. Haden, 92 Va. 201, 23 S. E. 285. Jurisdiction of the subject-matter of the litigation must affirmatively appear on the face of the record; that is, the record must show affirmatively that the case is one of a class of which the court rendering the judgment was given cognizance (Ritter Lumber Co. v. Coal Co., 115 Va. 370, 79 S. E. 322; Jones v. Buckingham Coal Co., 116 Va. 120, 81 S. E. 28), and the want of such jurisdiction of the trial court will be noticed by this court ex mero motu (South. & W. R. Co. v. Commonwealth, 104 Va. 314, 51 S. E. 824; Hanger v. Commonwealth, 107 Va. 872, 60 S. E. 67).

The rule with reference to jurisdiction over the persons of the litigants is not quite so strict. The "due process" clauses of the federal and state Constitutions require notice and an opportunity to be heard, but the litigants have rights which they may waive, if they choose, and, if waived in a case in which they have the right to waive, the judgment will be held valid. In this class of cases the question of the jurisdiction of the court usually resolves itself into one of whether or not there has been "due process, " whether the process has been served In the time and manner required by law, or service has been waived. Of course, the defendant must be properly brought before the court, else there will be no jurisdiction over him, and a judgment against him will be void (Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565); but where the record does not expressly show service of process, the court will scrutinize the record to ascertain if there is anything in it to show service, and, if there is, it will not declare the judgment void. In Hill v. Woodward, 78 Va. 765, a suit to sell land in which the widow was entitled to dower, the record did not affirmatively show service of process on the widow, who was a necessary party to the suit Her name did not appear in the process which was returned executed. The suit was brought to October rules, 1878. After various proceedings had in the cause, and the sale of the land at which she was present and a bidder, she, in June, 1881, filedher petition stating that she had never been served with process, and asking to be made a party defendant, and that the proceedings in the cause be vacated and the case heard de uovo. Judge Richardson, after a discussion of numerous authorities, arrives at the conclusion that, where the want of authority to render a decree, does not plainly appear on the face of the record, every presumption will be indulged in favor of judgments of courts of general jurisdiction, and the entire record will be inspected to ascertain if process had been served, that the onus of showing a want of service was upon the widow, who sought to impeach the decree, and that the mere failure of tho record to show affirmatively that process was served was not sufficient to impeach the decrees previously rendered in the cause. In that case the court made various surmises as to the issuance and service of process, and concluded there must have been service from the statement in one of the decrees that the cause came on to be heard on the bill taken for confessed as to all of the defendants.

In Ferguson v. Teel, 82 Va. 690, the objection made in this court was that the case was prematurely heard in the court below, because process against a married woman, who was one of the principal defendants, had not been served on her, but on her husband, and yet the record shows that the case was heard on the bill taken for confessed as to all of the defendants. Replying to this assignment, the court said:

"When a court of general jurisdiction has pronounced judgment, its adjudication should be as conclusive on the question whether a party was duly notified as on any other point necessary to a proper determination of the cause."

These words are quoted with approval by Lewis, P., in Moore v. Green, 90 Va. at page 183, 17 S. E. 873, where the record did not affirmatively show service of process, but the decree stated that all of the defendants had been duly served with process. See, also, dissenting opinion of Lewis, P., in Gresham v. Ewell, 85 Va. at page 6, 6 S. E. 702, where it is said:

"And it is equally well settled that a judgment of a court of competent jurisdiction is always presumed to be right until the contrary is shown, even when directly assailed in an appellate court. Harman v. City of Lynchburg, 33 Grat. [74 Va.] 37; Hill v. Woodward, 78 Va. 765. Every intendment is made to support the judgment, and the rule is that nothing shall be intended to be out of the jurisdiction of...

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