State ex rel. Keeney v. Bland
| Decision Date | 22 November 1921 |
| Docket Number | 4467. |
| Citation | 109 S.E. 716,89 W.Va. 600 |
| Parties | STATE EX REL. KEENEY ET AL. v. BLAND, JUDGE. |
| Court | West Virginia Supreme Court |
Submitted November 16, 1921.
Syllabus by the Court.
The only ground of jurisdiction in a superior court, to prevent an inferior court from proceeding in any cause or matter is lack of jurisdiction of such cause or matter in the inferior court, for some reason.
If two inferior courts of concurrent jurisdiction are entertaining identical causes of action between the same parties at the same time, there is no lack of jurisdiction in either of them until after an application to one of them for abatement of the action pending in it, or relinquishment of its jurisdiction, has been made and sustained by proof.
In such cases, attachment of the jurisdiction of the court of first cognizance does not of its own force preclude jurisdiction of the court of second cognizance. It merely affords the parties concerned the means or ground for procuring abatement of the second action, or discharge of persons or property seized under the process of the court in which it is pending.
Upon the plea in abatement filed under such circumstances, or an application for discharge of the person or property seized the court of second cognizance has jurisdiction, upon such pleas or application, to ascertain the facts necessary to determination of the question whether the same cause of action between the same parties is pending in the court of first cognizance, and previously came within its actual jurisdiction, or whether the same person or property is in the custody of such other court and was first seized under its process, as the case may be; wherefore the writ of prohibition cannot be awarded against the court taking subsequent jurisdiction of the cause of action or the person or property, before a hearing and determination as to its right to retain jurisdiction has been had, upon a proper application therefor, in the manner above indicated.
If the question of a court's jurisdiction depends upon issues of fact, it has power and jurisdiction to decide them, even though the evidence relied upon to prove the jurisdictional facts is wholly uncontradicted and absolutely conclusive, and it cannot be deprived of its right to do so by prohibition or any other collateral proceeding.
Prohibition does not lie at the instance of a person indicted, as an accessory before the fact to the crime of murder, in courts of two counties having concurrent jurisdiction of the offense, and held in custody under process issued by one of such courts, to prevent the other from proceeding against him, by process for his arrest or otherwise, in advance of a hearing in such other court as to facts upon which its supposed lack of jurisdiction depends, such as his identity his arrest, and possibly other matters.
Original proceeding by the State, on the relation of C. F. Keeney and others, against Robert Bland, Judge, for writ of prohibition. Writ refused.
Chafin & Estep, of Logan, and Osenton & Lee, of Fayetteville, for respondents.
By the usual procedure, C. F. Keeney and Fred Mooney, under indictment in Kanawha county and in Logan county for the same offense, being charged in each as accessories before the fact to the crime of murder alleged to have been committed in said last-named county, and now in custody by virtue of process issued on the indictment in said first-named county, seek a writ of prohibition against the judge of the circuit court of Logan county, to prevent him from proceeding against them, on the indictment pending in his court, upon the theory of concurrent jurisdiction of the offense in both courts, and antecedent attachment of that of Kanawha county, the petitioners having been first arrested and incarcerated under its process, and no arrest having been effected under the Logan county process, although the Logan county indictment was first found. The immediate purpose of this proceeding is prevention of arrest of the petitioners on a capias issued by order of the circuit court of Logan county November 5, 1921 and now in the hands of the sheriff of Kanawha county, and the ultimate purpose, to prevent trial on the Logan county indictment, while the other is pending in Kanawha county.
If upon the admitted facts alleged and the law as claimed by the petitioners, the remedy sought is inappropriate or unavailing, it is unnecessary to inquire whether the legal propositions advanced in support of the application for it are sound or not. For the purposes of the case, the constitutionality of section 8, c. 152 (sec. 5465) Code, interpreted as authorizing indictment and trial of an accessory, in either county, when the accessorial acts occur in one county and the crime is consummated in another, may be conceded. So may the correctness of that interpretation, the existence of concurrent jurisdiction and prior attachment of that of the intermediate court of Kanawha county. If, all of these propositions being so conceded, prohibition does not lie, there is no occasion for questioning their soundness. No inquiries as to them properly arise. We proceed, therefore, to the inquiry as to the applicability of the remedy sought.
The position assumed by the petitioners admits jurisdiction of he circuit court of Logan county over the subject-matter. It also admits right and power in that court to obtain jurisdiction of themselves, by arrest or seizure, but for prior arrest under process of the intermediate court of Kanawha county. The act sought to be prohibited is invasion of the jurisdiction of the latter court, by exercise of the jurisdiction of the former, treated as an act in excess of the invading court's jurisdiction.
This argument assumes lack of jurisdiction in the second court, in every instance in which the same plaintiff institutes two suits against the same defendant, upon the same cause of action, in different courts. Viewed in the light of ordinary procedure not involving any seizure of person or property, its fallacy is apparent. Pendency of a former suit for the same cause of action, whether in the same court or another, is mere matter of abatement, and must be pleaded in abatement, and at the first opportunity, else the defense is lost. Robrecht v. Marling, 29 W.Va. 765, 775, 2 S.E. 827; Delaplain v. Armstrong, 21 W.Va. 211; Bradley v. Welch, 1 Munf. (Va.) 284; Monroe v. Redman, 2 Munf. (Va.) 240. If this defense were jurisdictional, in the sense of lack of power in one court to try an action identical with one pending in another, and render judgment, the rule respecting its interposition would not be so strict. The defense is a personal privilege allowed the defendant, rather than a lack of power in the court; wherefore, upon his waiver of it, by failure to set it up by plea, filed at rules, the court may proceed to hear and determine the case. The rule by which a plea of another suit pending abates the one in which it is filed and sustained has, for its object, mere prevention of unnecessary vexation of a party by two or more suits upon the same cause of action. N. & W. R. Co. v. Nunnally's Adm'r, 88 Va. 546, 14 S.E. 367; Olmins v. Delaney, 2 Str. 1216; Richards v. Stuart, 10 Bing. 322. The fact that it must be set up by a plea, brought to the attention of the court in a strictly formal manner, and without the slightest delay, proves its nonjurisdictional character.
Nor is there any precedent in our decisions for its availability in any other way. If it is lost by mere failure to set it up in the suit in a proper manner or in proper time, on account of its dilatory nature or nonrelation to the merits of the cause, it certainly cannot be made available outside of the case by collateral procedure of any kind. In other words, if a court may reject it, although brought to its attention, because of mere delay in its interposition or lack of formality, and proceed with the case, as undubitably it may do, there can be no reason for permitting it to be made a ground or cause of prohibition to stop the case, or any other collateral proceeding.
It does not follow, however, that a defendant must submit to two judgments for the same cause of action. He may waive or lose his right to have the second suit abated by reason of the pendency of the first, and yet prevent two judgments, by pleading the judgment first rendered in bar of further prosecution of the other action, in which judgment has not been recovered. Both suits may be prosecuted and defended each as if the other were not pending; but the moment judgment is rendered in one of them, for either plaintiff or defendant, it is a weapon in the hands of the defendant with which, by pleading it, he may defeat the other action. Here, again, is a demonstration of the unsoundness of the proposition that attachment of the jurisdiction of one of two courts of concurrent...
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