State ex rel. Vance v. Arthur, No. 10887

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND
Citation142 W.Va. 737,98 S.E.2d 418
PartiesSTATE of West Virginia ex rel. Lanty V. B. VANCE v. Earl W. ARTHUR, Justice of the Peace, etc., et al.
Docket NumberNo. 10887
Decision Date28 May 1957

Page 418

98 S.E.2d 418
142 W.Va. 737
STATE of West Virginia ex rel. Lanty V. B. VANCE
v.
Earl W. ARTHUR, Justice of the Peace, etc., et al.
No. 10887.
Supreme Court of Appeals of West Virginia.
Submitted May 1, 1957.
Decided May 28, 1957.

Page 419

Syllabus by the Court

1. A judgment of a justice of the peace, convicting the accused of an offense of which the justice has jurisdiction but which was not committed in his presence or in the presence of a constable, rendered in a criminal case in which no valid warrant was issued before the rendition of the judgment, is void by reason of the failure of the justice to comply with the requirements of Sections 2 and 4, Article 18, Chapter 50, Code, 1931, and Section 14, Article III, of the Constitution of this State.

[142 W.Va. 738] 2. A void judgment is a mere nullity and is of no valid force or effect.

Page 420

3. A void judgment, being a nullity, may be attacked, collaterally or directly, at any time and in any court whenever any claim or right is asserted under such judgment.

4. A void judgment is subject to collateral attack in a proceeding in mandamus.

5. Though the writ of mandamus will be denied where another and sufficient remedy exists, if such other remedy is not equally as beneficial, convenient and effective, mandamus will lie.

6. A writ of mandamus will issue to require the discharge by a public official of a nondiscretionary duty.

Geo. W. Stokes, Charleston, for relator.

E. W. Salisbury, Charleston, George G. Burnette, Jr., Asst. Atty. Gen., W. W. Barron, Atty. Gen., W. Bernard Smith, Asst. Atty. Gen., for respondents.

HAYMOND, Judge.

This is an original proceeding in mandamus in this [142 W.Va. 739] Court in which the petitioner, Lanty V. B. Vance, seeks a writ to compel the defendant Earl W. Arthur, a justice of the peace of Charleston District, Kanawha County, and the successor in that office to Forrest Sevy, formerly a justice of the peace of Charleston District, Kanawha County, to vacate and set aside a judgment convicting the petitioner of the offense of driving a motor vehicle while under the influence of intoxicating liquor rendered by Forrest Sevy, a justice of the peace of Charleston District, Kanawha County, April 23, 1952; to compel the defendant Frankie Williams, judge of the municipal court of the City of South Charleston, to vacate and set aside a judgment convicting the petitioner of the offense of driving a motor vehicle while under the influence of intoxicating liquor rendered by him January 17, 1955; to compel each of these defendants to certify his action in vacating such judgment to the defendant Joseph H. Condry, commissioner of motor vehicles of West Virginia; and to compel the defendant Joseph H. Condry, commissioner of motor vehicles of West Virginia, to determine the validity of the judgments, to vacate and set aside his order of January 27, 1955, by which he revoked for a period of ten years the license previously issued to the petitioner to operate a motor vehicle, and to reinstate the license of the petitioner.

The proceeding was submitted for decision upon the petition, the separate demurrers of the defendants, and the briefs and the oral arguments of the attorneys for the respective parties.

The material facts are not disputed and the questions presented are questions of law.

The petitioner bases his right to relief in this proceeding on the propositions that the judgments convicting him of the offense of driving a motor vehicle while under the influence of intoxicating liquor are void, that the abstracts of those judgments certified to the department of motor vehicles by the justice and the clerk of the municipality, as provided by Section 4, Article 3, Chapter [142 W.Va. 740] 17B, Chapter 129, Acts of the Legislature, 1951, Regular Session, the judgments being of no force or effect, do not constitute a proper basis for the order of the commissioner revoking the license of the petitioner, and that the order of the commissioner is null and void.

The defendants resist the issuance of the writ on various grounds. The defendant Arthur insists that he does not have jurisdiction to vacate the judgment rendered by his predecessor in office April 23, 1952; the defendant Williams contends that the petitioner has failed to exercise an adequate remedy by an appeal from the judgment rendered January 17, 1955, that his right to relief is barred by limitation or laches, and that mandamus does not lie; and the defendant Condry contends that he is without authority to determine the validity

Page 421

of the judgments rendered against the petitioner, that it is his mandatory duty, upon the record of the judgments certified to the department, to revoke the license of the petitioner, and that his order of revocation violates no legal right of the petitioner.

On April 15, 1952, the petitioner was arrested without a warrant by a member of the West Virginia Department of Public Safety on U. S. Route 60 west of the City of Saint Albans, in Kanawha County, for the offense of operating a motor vehicle while under the influence of intoxicating liquor. He was not immediately taken before a justice of the peace but instead was brought to the jail of Kanawha County by the arresting officer and by him informed that he could appear before Forrest Sevy, a justice of the peace of Charleston District, Kanawha County, and plead guilty and pay a fine, which he did on April 23, 1952. The justice fined the petitioner $50.00 and costs, revoked his operator's license for a period of six months, and certified an abstract of the judgment to the department of motor vehicles. No complaint charging the petitioner with an offense was filed and no warrant was ever issued by the justice in connection with the offense to which he entered a plea of guilty; and the offense of which he was convicted[142 W.Va. 741] was not committed by the petitioner in the presence of the justice of the peace or in the presence of a constable.

On December 18, 1954, the petitioner was again arrested, also without a warrant, in the City of South Chalreston, Kanawha County, by two police officers of that city for the offenses of appearing in an intoxicated condition in a public place, leaving the scene of an automobile accident, and driving a motor vehicle while under the influence of intoxicating liquor. He was taken to the city jail, was released on bond, and was directed to appear before the judge of the municipal court of the City of South Charleston on January 17, 1955. When he appeared at that time the judge informed him of the three charges against him and told him that the charges except the charge of driving a motor vehicle while under the influence of intoxicating liquor would be dismissed, that the charge of driving a motor vehicle while under the influence of intoxicating liquor would be dealt with by the judge as a first offense by the petitioner, and that upon a plea of guilty his operator's license would be revoked for a period of six months. The petitioner entered a plea of guilty to that offense, and the judge imposed a fine of $54.00 and costs, revoked the license for a period of six months, and certified an abstract of the judgment to the department of motor vehicles. The offense of which the petitioner was convicted, though committed in the presence of the arresting officers, was not committed in the presence of the judge of the municipal court or in the presence of a justice of the peace or a constable. No warrant charging the petitioner with the offense to which he pleaded guilty was issued in connection with the proceeding before the judge of the municipal court.

Upon the record of the department of motor vehicles showing the two convictions of the petitioner of the offense of driving a motor vehicle while under the influence of intoxicating liquor within a period of five years, the defendant Condry, commissioner of motor vehicles, by order of January 27, 1955, revoked the operator's license of the petitioner for a period of ten years.

[142 W.Va. 742] After the commissioner issued his revocation order of January 27, 1955, the petitioner appeared by counsel before the defendant Arthur, the successor in office to Forrest Sevy, as justice of the peace, the records of which office are in the lawful custody of the defendant Arthur, and moved the defendant Arthur to set aside and vacate the judgment rendered by Forrest Sevy, while a justice of the peace, on April 23, 1952, and the abstract of that judgment, on the ground that such judgment is null and void because not based upon a valid warrant, and by order so to correct the records of Forrest Sevy and to forward such order to the defendant Condry. The petitioner also appeared before the...

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36 practice notes
  • Lieberman v. Lieberman, No. 10849
    • United States
    • Supreme Court of West Virginia
    • July 3, 1957
    ...then existed has been modified by that statute is not presented, is of no importance Page 288 in the final disposition of these cases in [142 W.Va. 737] this Court and, in consequence, can not now be considered, determined or The final decree of the domestic relations court entered October ......
  • Gavenda Bros., Inc. v. Elkins Limestone Co., No. 12012
    • United States
    • Supreme Court of West Virginia
    • November 22, 1960
    ...584, 103 S.E.2d 797; State of West Virginia ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; State ex rel. Vance v. Arthur, 142 W.Va. 737, 98 S.E.2d 418; State ex rel. Lovejoy v. Skeen, 138 W.Va. 901, 78 S.E.2d 456, certiorari denied, 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268; Benn......
  • Rakes v. Ferguson, No. 12212
    • United States
    • Supreme Court of West Virginia
    • March 19, 1963
    ...143 W.Va. 584, 103 Page 108 S.E.2d 797; State ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; State ex rel. Vance v. Arthur, 142 W.Va. 737, 98 S.E.2d 418; State ex rel. Lovejoy v. Skeen, 138 W.Va. 901, 78 S.E.2d 456, certiorari denied, 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268; Be......
  • State ex rel. Zickefoose v. West, No. 12039
    • United States
    • Supreme Court of West Virginia
    • October 18, 1960
    ...and complete legal remedy, the use of that writ is subject to certain restrictions and limitations. State ex rel. Vance v. Arthur, 142 W.Va. 737, 98 S.E.2d 418; Stowers v. Blackburn, 141 W.Va. 328, 90 S.E.2d 277; Carter v. The City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747; Bailey v. Colem......
  • Request a trial to view additional results
36 cases
  • Lieberman v. Lieberman, No. 10849
    • United States
    • Supreme Court of West Virginia
    • July 3, 1957
    ...then existed has been modified by that statute is not presented, is of no importance Page 288 in the final disposition of these cases in [142 W.Va. 737] this Court and, in consequence, can not now be considered, determined or The final decree of the domestic relations court entered October ......
  • Gavenda Bros., Inc. v. Elkins Limestone Co., No. 12012
    • United States
    • Supreme Court of West Virginia
    • November 22, 1960
    ...584, 103 S.E.2d 797; State of West Virginia ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; State ex rel. Vance v. Arthur, 142 W.Va. 737, 98 S.E.2d 418; State ex rel. Lovejoy v. Skeen, 138 W.Va. 901, 78 S.E.2d 456, certiorari denied, 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268; Benn......
  • Rakes v. Ferguson, No. 12212
    • United States
    • Supreme Court of West Virginia
    • March 19, 1963
    ...143 W.Va. 584, 103 Page 108 S.E.2d 797; State ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; State ex rel. Vance v. Arthur, 142 W.Va. 737, 98 S.E.2d 418; State ex rel. Lovejoy v. Skeen, 138 W.Va. 901, 78 S.E.2d 456, certiorari denied, 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268; Be......
  • State ex rel. Zickefoose v. West, No. 12039
    • United States
    • Supreme Court of West Virginia
    • October 18, 1960
    ...and complete legal remedy, the use of that writ is subject to certain restrictions and limitations. State ex rel. Vance v. Arthur, 142 W.Va. 737, 98 S.E.2d 418; Stowers v. Blackburn, 141 W.Va. 328, 90 S.E.2d 277; Carter v. The City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747; Bailey v. Colem......
  • Request a trial to view additional results

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