. State Ex Eel. Jean W. Smith v. Hall
| Citation | 94 W.Va. 400 |
| Decision Date | 11 September 1923 |
| Docket Number | No. 4923.,4923. |
| Court | Supreme Court of West Virginia |
| Parties | . State ex eel. Jean W. Smith v. James H. Hall, Sheriff. |
A proceeding by mandamus to enforce the payment by the sheriff of a judgment against a board of education is in the nature of an execution. (p. 405).
A judgment, regular upon its face, rendered against a board of education by a justice having jurisdiction of the subject matter and the parties, can not be impeached collaterally in proceedings for a writ of mandamus to enforce payment, on the ground that it was entered by consent of the officers of the board which had a valid defense. Such defense to the mandamus proceedings amounts to a collateral attack upon the judgment, (p. 405).
Would Exhaust Board of Education's Fund Held Not Defense to Mandamus to Enforce Payment.
A teacher, under contract with a board of education, completes part of the school term for which she is employed and the board discharges or attempts to discharge her; her successor is then employed, who completes the school term. The county financial secretary refuses to countersign the salary orders issued by the board to the successor, who then obtains judgments against the board for the amounts of her salary. She thereupon applies to this court for a writ of mandamus to require the sheriff to pay her judgments out of the teachers" fund of the board. The judgments are valid claims against the teachers' fund, so long as they remain unreversed and unsatisfied; and that their payment by the sheriff would exhaust the fund in his hands, and not leave sufficient moneys in said fund to pay the former teacher's claims, if adjudged valid, is no defense to the mandamus proceedings, (p. 406).
4. Schools and School Districts Sheriff Cannot Legally Pay Judgment Against Board of Education Except on Order Thereof; Certified Copy of Judgment or Execution Thereon not Sufficient Warrant for Payment of Judgment by Sheriff Against Board of Education.
The sheriff can not legally pay a judgment against a board of education, out of funds of the board, except upon an order from the board. A certified copy of the judgment or of an execution issued thereon is not a sufficient warrant for payment, (p. 407).
Petition for mandamus by the State, on the relation of Jean W. Smith, against James H. Hall, sheriff.
Writ refused.
Law & McCue, for relator.
B. F. Kidd and J. D. Jones, for respondent.
Jean W. Smith applies to this court for a writ of mandamus to compel James H. Hall, the sheriff of Gilmer County, and as such the treasurer of the board of education of Glenvillc District thereof, to pay off and discharge three judgments obtained by her before a justice against the board of education of said district. These judgments, amounting, with the costs, to $658.15, were recovered by petitioner in the months of March, May and June, 1923, and represented the amount of money alleged to be due her for services rendered as a teacher in the Sand Fork High School of Glenville District at the rate of $150 per month.
The petition alleges the issuance of the salary orders by the board of education, and their non-payment; the rendition of the judgments thereon; the issuance of execution orders, and their return "not satisfied" by the constable in whose hands they were placed; and particularly alleges that there is, and was at the time the executions were presented to the respondent for payment, a sufficient amount of money in the Teachers' Fund in his hands to satisfy the petitioner's claim for salary.
Additional averments are that petitioner is informed and believes that the Board of Education has done all in its power to persuade respondent to pay the judgments, and that the board, recognizing the merit of her claims, made no appearance in the actions brought by her in the justice's court, where the judgments were rendered.
Petitioner files as exhibits transcripts of the judgments recovered before the justice, and a copy of the financial statement of the superintendent of schools of the district for the month ending May 31, 1923. This statement showed that the balance in the high school teachers' fund on that date was $1223.27, a sum more than sufficient to pay petitioner's salary claim.
Although averring that he denies the allegations of the petition, respondent in his return substantially admits the essential facts relied upon by petitioner. He admits the hiring of petitioner by the school board, the rendering of the service, the issuance of the salary orders, not countersigned by the financial secretary, the judgments, and that there are sufficient funds in his hands to satisfy petitioner's demands.
While admitting that the services were rendered, however, the contention is that they were not legally rendered; and while admitting that the judgments were obtained, he contends they were secured through the collusive acts of the parties to the proceedings, and that for these reasons the board is not bound to make satisfaction. To sustain these positions, respondent reviews the circumstances which gave rise to the controversy, and which we must briefly notice.
It seems that in September, 1922, Golden J. Stump was employed as the teacher in Sand Fork High School for the school year, the contract with her being the regular teacher's contract prepared by the State Department of Schools. Miss Stump was retained under the contract until February, 1923, at which time, owing to some dissatisfaction with her services, the board required her resignation. Respondent alleges that her dismissal was not regular or legal, and that for this reason there was no legal vacancy in the position of teacher which could properly be filled by petitioner or any other person.
Whatever may be the fact as to this, prior to the final action by the board relative to the hearing of the charges preferred against her, Miss Stump secured a temporary injunction from the circuit court of Gilmer county restraining any further proceedings, which injunction seems to be still in effect, and instituted an action in that court to recover $762.50, the balance due her under her contract with the board. This brings to mind the second objection raised by respondent to the satisfaction of petitioner's judgments, that is, that while there may be sufficient funds in his hands to pay petitioner's claims, there are not sufficient funds to pay both hers and the prior obligations of the board, meaning the claim of Miss Stump, should she prevail in her action in the circuit court.
The point most strongly urged, however, concerns the validity of the judgments. It is alleged that although the board of education issued petitioner's salary orders, they were irregular and illegal, and the county superintendent, upon the advice of the State Department of Schools, refused to counter- sign them until the rights of Miss Stump should be finally-settled. This was also the position of the president of the board, who, it is alleged, repudiated the affixing of his name thereto by the secretary. It is averred further, however, that the two remaining members of the board colluded with petitioner to secure the payment of the orders, and that to accomplish this end they caused the actions to be brought before L. D. Taylor, a justice of the county. Fraudulently conspiring to enter no defenses in the proceedings, the two members made no appearance in behalf of the board, and further than that, notified C. F. Freeman, the newly appointed president of the board, that no defense would be necessary or proper. These circumstances, respondent urges, render the judgments...
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