Staud v. Sill, (CC 485)

• Decision Date: 17 October 1933
• Docket Number: (CC 485)
• Citation: 114 W.Va. 208
• Court: West Virginia Supreme Court
• Parties: John A. Staud v. H. B. Sill and Leroy See, Trustee

114 W.Va. 208

John A. Staud

v.H. B. Sill and Leroy See, Trustee

(CC 485)

Supreme Court of Appeals of West Virginia.

Submitted September 19, 1933.

Decided October 17, 1933.

1. Appeal, and Error

A decree to be appealable under that part of sub-section g of 58-5-1, Code, making decrees appealable that adjudicate the principles of the cause, must adjudicate all, and not a part only, of those principles. Point 3, Syllabus of Blue v. Hazel-Atlas Glass Co., 93 W. Va. 717, 117 S. E. 612, overruled.

2. Appeal and Error

A decree presenting a question arising upon a challenge of the sufficiency of a pleading and not appealable, presents a proper question for certification to this court under 58-5-2, Code.

3. Constitutional Law

Chapter 34 of the Acts of the Legislature of 1933 held unconstitutional as attempting to confer upon circuit courts non-judicial powers.

Case certified from Circuit Court, Randolph County.

Suit by John A. Staud against H. B. Sill and another. A demurrer to a part of the bill was sustained, and the ruling certified for review.

Affirmed.

Keith Cunningham, for plaintiff.

LeRoy See, for defendants.

Kenna, Judge:

John A. Staud brought a chancery suit in the circuit court of Randolph County for the purpose of setting aside a deed conveying certain real estate owned by him made by LeRoy See, trustee, pursuant to a trust deed sale thereof. The bill complains that the trustee did not comply with the provisions of the Act of March 11, 1933, which amended section 8 of article 1 of chapter 38 of the Code 1931. The bill shows that the deed of trust under which the sale was made was entered into January 1, 1927, and that the trust deed sale took place on May 6, 1933. The bill further complains that the consideration received at the sale was totally inadequate. To this bill the defendants demurred, assigning, in effect, as the sole ground of demurrer, the fact that the Act of the Legislature in question did not apply to trust deeds in effect prior to its effective date, because to make it so apply would render it unconstitutional as impairing the obligation of a contract. The trial court sustained the demurrer as to that part of the bill raising the question of constitutionality, stating in the order that the demurrer as to the rest of the bill was overruled, dismissed the bill as to that part thereof to which the demurrer had been sustained, and then proceeded to certify to this court the questions thus raised.

At the outset it may be well to attempt some clarification on the question of what is and what is not a certifiable question under chapter 58, article 5, section 2, Code. It will be seen that in sustaining the demurrer to that part of the bill of complaint alleging non-compliance with the Act of March 11, 1933, chapter 34 of the Acts of the Legislature of 1933, the trial court dismissed that part of the plaintiff's bill! This is not the best practice preparatory to certification. The questions to be certified should be retained before the trial court awaiting the action of this court, and disposed of thereafter according to the answers made in this court to the questions certified. Gas Co. v. Shreve, 90 W. Va. 277, 279, 110 S. E. 714. The procedure last indicated removes the doubt as to whether the questions certified have been finally disposed of in the trial court, thus preventing the confusion which sometimes otherwise arises in determining whether the questions certified have been disposed of by appealable decree in the trial court. If they have been so disposed of, then the action of the trial court is not reviewable upon certification but only upon appeal. Lee v. City of Elkins, 97 W. Va. 183, 124 S. E.

499; Gas Co. v. Shreve, 90 W. Va. 277, 110 S. E. 714.

It is to sub-section g of section 1 of article 5 of chapter 58 of the Code that we turn to determine whether or not a decree is appealable. It prescribes that decrees dissolving or refusing to dissolve injunctions, requiring money to be paid, or real estate to be sold, or the possession or title of property to be changed, or adjudicating the principles of a cause are all appealable. That part of the bill dismissed by the trial chancellor in this cause, of course, does not deal with an injunction. Neither does it require money to be paid, or real estate to be sold, or the possession or title of property to be changed. The remaining question is: does it adjudicate the principles of the cause? If it does, in the sense contemplated by the statute, then it is appealable and not certifiable. If it does not, in that sense, adjudicate the principles of the cause, then it is not appealable and is certifiable.

The decree here, dismissing that part of the plaintiff's bill alleging non-compliance with the Act of the Legislature, while it disposed completely of one ground of equitable relief, nevertheless, left remaining in the bill of complaint a distinct and separate ground of equitable relief, i.e., total inadequacy of consideration at the sale, and therefore did not adjudicate all of the principles of the cause. A decree, to be classified as appealable and therefore not reviewable upon certificate, must be an adjudication of not only a part but of all of the principles of the case. It is the decree which has this effect to which an appeal lies as adjudicating the principles of the cause. The other orders of the cause being interlocutory in nature, while they may be appealable as dissolving or refusing to dissolve an injunction, requiring money to be paid, or real estate to be sold, or the possession or title to property to be changed, are not appealable as adjudicating the principles of the cause. An examination of this question, as it has been dealt with in this state, may be made by a reading of the following cases: Camden v. Haymond, 9 W. Va. 680, 687, et seq.; Laidley v. Kline's Admr., 21 W. Va. 21; Core v. Strickler, 24 W. Va. 689, 693; Sturm v. Fleming, 26 W. Va. 54, 58, Id. 31 W. Va. 701, 8 S. E. 263; Hill v. Als, 27 W. Va. 215, 218; Shirey v. Musgrave, 29 W. Va. 131, 141, et seq., 11 S. E. 914; Wood v. Harmison, 41 W. Va. 376, 380, 23 S. E. 560; Hill v. Cronin, 56 W. Va. 174, 179, 49 S. E. 132; Harper v. South Penn Oil Co., 77 W. Va. 294, 303, 87 S. E. 483; Drake v. O'Brien, 83 W. Va 678, 682, 99 S. E. 280, Id. 99 W. Va. 582, 130 S. E. 276; Arnold v. Mylius, 85 W. Va. 123, 128, 101 S. E. 78; Shinn v. Shinn, 105 W. Va. 246, 249, 142 S. E. 63; Blackshere v. Blackshere, 111 W. Va. 213, 214, 161 S. E. 27. It will be found that the foregoing cases justify the conclusion that the decree of the trial court herein dismissing a part only of the plaintiff's bill is not appealable, and that therefore the question that arises upon such dismissal after demurrer is sustained may be certified. There is no difficulty in reconciling this holding with the cases of Gulland v. Gulland, 81 W. Va. 487, 94 S. E. 943; Heater v. Lloyd, 85 W. Va. 570, 102 S. E. 228, and Gas Co. v. Shreve, 90 W. Va. 277, 110 S. E. 714. There is, however, some difficulty in reconciling the views herein expressed with the case of Blue v. Glass Co., 93 W. Va. 717, 117 S. E. 612. That case, and particularly point 3 of the syllabus thereof, seems to be authority for the proposition that an order striking out a part of a bill of complaint so material as to deny plaintiff a part only of the relief sought is a decree adjudicating the principles of the cause and is appealable and therefore not certifiable even though it leaves the remaining part of the principles of the case undisposed of. In line with the West Virginia cases herein set out, we do not believe that such a decree is appealable as adjudicating the principles of the cause, and, therefore, so much of the case of Blue v. Glass Co., 93 W. Va. 717, 117 S. E. 612, as so holds is hereby expressly overruled.

We therefore conclude that all of the questions dealt with by the trial court, including that part which dismissed the plaintiff's bill of complaint are now before us on certification.

As to that part of the bill of complaint which raises the question whether the provisions of chapter 34 of the Acts of the Legislature of 1933 are retroactive and hence applicable to foreclosure proceedings under a deed of trust made before the Act went into effect, it is unnecessary, in view of the disposition we find we must make of this case, to enter into an extended discussion. On one side, it is asserted that the provisions of that Act relate entirely to matters of procedure and therefore can be made retroactive without impairing the obligation of the deed of trust contract. On the other hand, it is urged that the questions are not purely procedural, but that compliance with them involves delay and expense, and sets up entirely new standards for the determining of the validity of a sale under a trust deed. It is at times quite difficult to determine what changes in legal circumstance do impair the obligation of a contract. We have been able to find no cases closely analagous to this. But the broad general rule seems to be that changes which lessen the value of the contract do impair its obligations. Those that do not lessen its value do not so impair it. Planters Bank v. Sharp, 6 Howard (47 U. S.) 301, 327; Seibert v. Lewis, 122 U. S. 284, 294; Edwards v. Kearzey, 96 U. S. 595. If gauged upon that principle, it would seem that we would be obliged to hold that chapter 34 of the Acts of the Legislature of 1933 cannot be applied retroactive^, because so doing would impair the obligation of the deed of trust contract, since it is obvious that compliance with the terms of the Act would of necessity to some degree lessen the value of...