State ex rel. Emery v. Rodgers, 10565

Decision Date07 July 1953
Docket NumberNo. 10565,10565
Citation76 S.E.2d 690,138 W.Va. 562
CourtWest Virginia Supreme Court
PartiesSTATE ex rel. EMERY et al. v. RODGERS.

Syllabus by the Court.

1. Mandamus is an appropriate remedy to compel compliance with a mandate of this Court.

2. 'It is proper for this court, on application for a writ of mandamus, to construe its own mandate in connection with its opinion; and if it finds that the circuit

court has erred, or acted beyond its province, in construing the mandate and opinion, to correct the mistake now and here, and to do so by writ of mandamus.' Syllabus, Boswell v. Haymond, Judge, 84 W.Va. 687, .

Martin & Seibert and Clarence E. Martin, Jr., Martinsburg, for relators.

L. I. Rice, Martinsburg, for defendant.

LOVINS, Judge.

This original proceeding in mandamus was instituted by Robert L. Emery, Jr. and Emery's Motor Coach Lines, Incorporated, a corporation, for the purpose of obtaining a writ of mandamus requiring the Honorable Decatur H. Rodgers, Judge of the Circuit Court of Berkeley County, West Virginia, to obey a mandate of this Court, issued pursuant to the opinion filed in the suit of Emery's Motor Coach Lines v. Mellon National Bank & Trust Company, W.Va., 68 S.E.2d 370; and to set aside an order made by the Circuit Court of Berkeley County quashing an execution issued for the recovery of costs incurred on the appeal in Emery's Motor Coach Lines v. Mellon National Bank, supra; and requiring the defendant to set aside and declare null and void an attempted sale of the assets of Emery's Motor Coach Lines, Inc., made on the 31st day of October, 1949.

On October 5, 1949, Emery's Motor Coach Lines, Incorporated, hereinafter designated as 'Emery', was indebted to the Mellon National Bank and Trust Company, hereinafter designated as 'Bank', in the amount of $85,300. One of the three trustees named in a deed of trust securing the payment of that indebtedness, attempted to sell the assets of Emery on October 31, 1949. The property was allegedly purchased by the Bank for the sum of $79,000. On October 31, 1949, the Bank sold the property to Potomac Coach Lines for the sum of $85,289.12 and $315.30 interest.

The case of Emery's Motor Coach Lines v. Mellon National Bank, supra, was heard by this Court on an appeal, and while the appeal was pending in this Court, the Bank commenced an action by a notice of motion for judgment against Emery, Robert L. Emery, Jr., and Geneiva Emery.

The Circuit Court of Berkeley County, on March 29, 1950, rendered a judgment for the sum of $9,436.38 in the notice of motion proceeding, the amount of such judgment evidently having been ascertained as the difference between the amount bid by the Bank at the alleged sale on October 31, 1949, and the total amount of indebtedness due from Emery to the Bank.

This Court, on the appeal, held that the sale made by the trustee was invalid for two reasons: (a) Failure to give sufficient and reasonable notice of sale, and, (b) for the further reason that only one of the three trustees was present at the sale. For a statement of additional facts, see the opinion in Emery's Motor Coach Lines v. Mellon National Bank & Trust Co., supra. This Court's mandate was issued in accordance with the opinion on the 18th day of December, 1951.

Upon remand, the petitioners in this proceeding caused an execution to be issued by the Clerk of the Circuit Court of Berkely County, seeking a recovery of the costs assessed in this Court on that appeal. Defendants moved to quash the execution. The Circuit Court of Berkeley County has indicated that same will be quashed, but no formal order quashing the same has been entered.

Emery and Robert L. Emery, Jr., filed their second amended bill of complaint on the 21st day of May, 1952, alleging, among other things, that the property illegally sold on the 31st day of October, 1949, had been resold by the Bank and could not be returned to the trustees named in the deed of trust; that the Bank had obtained a judgment for $9,436.38, based on the alleged deficiency as above stated.

The second amended bill of complaint prayed that Emery, Robert L. Emery, Jr. and Geneiva Emery have a decretal judgment against the Bank for damages by reason of the alleged void sale, as well as damages accruing by reason of loss of business, assets and property theretofore belonging to Emery; that the judgment taken in the notice of motion action be set aside and vacated.

The Bank filed its answer to the second amended bill in which it was admitted that the property had been resold; that many items of property covered by the deed of trust had been sequestered by Robert L. Emery, Jr.; that he refused to deliver that property to the trustees. The answer admits the rendition of the judgment against Emery's Motor Coach Lines, Incorporated, Robert L. Emery, Jr. and Geneiva C. Emery.

The Bank admits that the property had been resold and could not be returned to the trustees. The answer of the Bank to the second amended bill alleges that the government of the United States and the State of West Virginia have numerous tax liens against Emery and that such liens cannot be satisfied on account of the insolvency of Emery and Robert L. Emery, Jr. The answer denies that the property of Emery disposed of at the alleged sale was valued at $130,000. On the contrary, the Bank, in its answer to the second amended bill, avers the actual value of the property of Emery did not exceed $75,000; that many items claimed by Emery were 'junk'. In summation, the Bank alleges that Emery and Robert L. Emery, Jr., suffered no injury because of the void sale, the property illegally converted by means of such sale, being insufficient to discharge the debt owed by Emery to the Bank; and that the equity of redemption was of no value.

The Circuit Court of Berkeley County entered a decree on the 16th day of December, 1952, setting aside the sale made on the 31st day of October, 1949, and, thereafter, commenced a hearing to determine the value of the property converted. On the following day, the Circuit Court of Berkeley County rescinded its former order and at the conclusion of the hearing upon the question of value, found that the property converted by the Bank had a value of $75,000; that such amount is substantially less than the debt owed to the Bank by Emery. Following that finding, the Court held that the relators in the instant proceeding have no right to maintain the chancery suit and, accordingly, dismissed it.

The following questions are presented in this proceeding: (1) Did the Circuit Court of Berkeley County carry out the mandate of this Court issued in accordance with the opinion rendered in the case of Emery's Motor Coach Lines, Inc. v. Mellon National Bank & Trust Co., supra? (2) Should the Circuit Court of Berkeley County be required to formally set aside such sale?

Before discussing the merits, we deem it necessary to advert to the fact that the record in the instant proceeding contains several exhibits which were filed by the relators and the defendant.

Though anciently and at common law, a writ of mandamus was regarded as a prerogative writ, that view no longer obtains in this jurisdiction. It is now treated as a civil action at law. Fisher v. City of Charleston, 17 W.Va. 595, 604 et seq.; State ex rel. Matheny v. County Court, 47 W.Va. 672, 675, 35 S.E. 595; Newman v. Bailey, 124 W.Va. 705, 708, 22 S.E.2d 280.

In the absence of statutory authority, exhibits attached to or filed with a pleading in a law action, are not a part of the pleading. State for use of Pingley v. Pingley, 84 W.Va. 433, 100 S.E. 216; Vorholt v. Vorholt, 111 W.Va. 196, 160 S.E. 916; State ex rel. Medley v. Skeen, W.Va., 76 S.E.2d 146; Cawley v. Board of Trustees, W.Va., 76 S.E.2d 683. The last two cases mentioned are not reported. We therefore cannot properly consider the exhibits, but rely upon the allegations of the petition and the answer thereto.

Mandamus is an appropriate remedy to compel the Judge of a Circuit Court or other Court of record to comply with a mandate of this Court. Koonce v. Doolittle, 48 W.Va. 592, 37 S.E. 644; King v. Mason, Judge, 60 W.Va. 607, 611, 56 S.E. 377; French v. Bennett, 69 W.Va. 653, 72 S.E. 746. 'It is proper for this court, on application for a writ of mandamus, to construe its own mandate in connection with its opinion; and if it finds that the circuit court has erred, or acted beyond its province, in construing the mandate and opinion, to correct the mistake now and here, and to do so by writ of mandamus.' State ex rel. Boswell v. Haymond, Judge, 84 W.Va. 687, 100 S.E. 493. A decision of this Court on appeal may not be limited or restricted in any manner whatsoever by a trial court and this Court, by mandamus, may compel the entry of the decision made on appeal or writ of error, as a decision of the court from which the appeal or writ of error has been prosecuted. Baier v. Alexander, 119 W.Va. 716, 196 S.E. 17.

An examination of the opinion of this Court in the case of Emery's Motor Coach Lines, Inc. v. Mellon National Bank & Trust Co., supra, and the record in this case indicates clearly that a proper interpretation of the...

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