Sperry v. Sanders

• Decision Date: 16 November 1901
• Citation: 50 W.Va. 70,40 S.E. 327
• Court: West Virginia Supreme Court
• Parties: SPERRY v. SANDERS, Judge, et al.

40 S.E. 327

50 W.Va. 70

SPERRY

v.SANDERS, Judge, et al.

Supreme Court of Appeals of West Virginia.

Nov. 16, 1901.

PROHIBITION—ENFORCEMENT OF JUDGMENT LIEN.

In a chancery suit brought to enforce the lien of a judgment upon real estate a circuit court has jurisdiction to determine whether or not such judgment is valid, although it may be void upon its face; and the writ of prohibition does not lie to restrain the judge of such court from proceeding in such cause. (Syllabus by the Court.)

Petition by J. J. Sperry for a writ of prohibition to J. M. Sanders and others. Writ denied.

T. L. Huintze, for petitioner.

Rucker, Hellar & Anderson, for respondents.

POFFENBARGER, J. John Vaiden recovered, in an action of debt, in the circuit court of McDowell county, on the 18th day of March, 1895, a judgment for $22.62 and costs, which amount to $15.15. The demand sued for was a promissory note for $125. The defendant's demurrer to the declaration was overruled, and thereupon he pleaded payment of the debt, and filed also a statement of set-off under his plea of payment, as the record states, and then the plaintiff filed a statement of counter set-off. Trial by a jury resulted in a verdict for $22.62. A motion to set aside the verdict and grant a new trial was overruled, and judgment given for the amount of the verdict and costs. Upon this judgment an execution was issued, and duly returned unsatisfied, with the indorsement of the sheriff, "No property found." Then a chancery suit was instituted by Vaiden against Sperry and others, in which he set out in his bill the recovery of the judgment, his effort to collect it, and the fact that it remains unpaid and unsatisfied, and alleged that Sperry was the owner of certain real estate upon which the said judgment and other judgments and claims held by other persons, parties to the suit, were liens, and prayed that the said real estate might be sold to satisfy the plaintiff's judgment and the other liens, according to their priorities. Other proceedings were had in said chancery cause, which it is unnecessary to give in detail here; and on the 15th day of June, 1896, the cause was referred to a commissioner to take such an account as is usual in such cases, and to the report of the commissioner exceptions were filed by the defendant, the first of which was sustained, and the cause was referred to another commissioner of the court. Before said last order of reference was executed, the defendant Sperry, on the 7th day of April, 1900, presented to this court a petition praying for a writ of prohibition restraining the judge of said circuit court and the said Vaiden from further proceeding in said cause, and from doing any further act to enforce the collection of said judgment and costs.

Counsel for the petitioner argues that the judgment was rendered in violation of section 7 of chapter 138 of the Code, which reads as follows: "In any personal action on contract, wherein it is ascertained that not more is due the plaintiff than fifty dollars, exclusive of interest, judgment shall be given for the defendant, unless the court enter of record that the matter in controversy was of greater value than fifty dollan, exclusive of interest; in which case it may give judgment for the plaintiff for what is ascertained to be due him, with or without costs, as to it may seem right." His further contention is that the suit in chancery is a proceeding to carry that judgment into effect, and the judgment, as he claims, being void, and in violation of said section, the court, in taking cognizance of said chancery suit and proceeding with the same, is exceeding its legitimate powers. He regards the case of Wilkinson v. Hoke, 39 W. Va. 403, 19 S. E. 520, as applicable here. The argument for the respondents proceeds upon the theory that the circuit court in the law case had jurisdiction and power to render judgment upon the verdict, without entering upon the record that the matter in controversy was of greater value than $50, and that this court may determine from the record, in considering the petition for writ of prohibition, what the matter in controversy was, and whether of greater value than $50. Counsel for respondents say the amount sued for gave the circuit court unquestioned jurisdiction in the first instance, and whatever reductions were made in the amount due the plaintiff were in the nature of set-off, and not of payments on the note, and that, upon the authority of Maitland v. McDearman, 1 Va. Cas. 131; Neff v. Talbot, Id. 140; La-rowe v. Binns, 2 Va. Cas. 203; and Ferguson v. Highley, Id. 255, —the judgment is valid. In the views of counsel on both sides the real question in the case, namely, whether, if the judgment is void, and the court had no power to render it, prohibition will lie to restrain the circuit court from proceeding to consider in another case the question of the validity of the judgment in connection with...