Stepp v. State Rd. Comm'n

• Citation: 151 S.E. 180
• Decision Date: 10 December 1929
• Docket Number: (No. 6344.)
• Court: Supreme Court of West Virginia
• Parties: STEPP et al. v. STATE ROAD COMMISSION et al.

151 S.E. 180

STEPP et al.
v.
STATE ROAD COMMISSION et al.

(No. 6344.)

Supreme Court of Appeals of West Virginia.

Dec. 10, 1929.

Rehearing Denied Jan. 20, 1930.

(Syllabus by the Court.)

Appeal from Circuit Court, Mingo County.

Suit by John B. Stepp and others against the State Road Commission and others. From an adverse decree, defendants appeal. Reversed, and bill dismissed.

Randolph Bias, of Williamson, for appellees.

J. Walter Copley, Pros. Atty., Chlide Nelms, and Goodykoontz & Slaven, all of Williamson, for appellants.

LIVELY, J. On May 3, 1927, the state road commission and county court of Mingo county presented its bill to the circuit judge for injunction against John B. Stepp, W. T. Alan-ley, Fred Slater, W. J. Reedy, E. F. Randolph, D. V. Walker, G. F. Ferrell, W. O. Bivens, T. C. Stanley, D. E. Brown, D. Brown, J. F. Varney, Hubert Mulky, Mike Hofstetter, C. M. Gates, D. M. Gates, E. D. Dingess, H. Schwachter, D. R. Gates, M. V. Crigger, Mont Stepp, Andy New, Jr., Kenneth Stepp, Mrs. J. R. Maynard, Fairview Land Company, a corporation, Pigeon Creek Realty Company, a corporation, Day and Night Garage, a corporation, Lincoln Scaff, E. C. Dutton, C. A. Dutton, A. R. Maynard, and Sam Maynard, praying that defendants be enjoined from interfering with the construction of a state highway on certain lands deeded to the county court of Mingo county by Norfolk & Western Railway Company by deed dated July 24, 1907, and for general relief. At the July term, 1927, a final decree was entered reciting that process and notice of the injunction had been served on all of defendants and returned and filed in the clerk's office; that the cause was heard upon the verified bill and exhibits duly filed at rules; that none of defendants had made any appearance; that the cause had regularly matured for hearing; and that plaintiffs were entitled to relief as prayed for. The temporary injunction was thereupon perpetuated restraining defendants from interfering in any way with the construction of the state road known as state highway No. 8 through the two tracts of land described in the bill; and from exercising any act or dominion over any part of said two tracts, describing them by metes and

[151 S.E. 181]

bounds as parcels Nos. 1 and 2, being the same real estate conveyed by the Norfolk & Western Railway Company to the county court July 24, 1907. The cause was ordered to be omitted from the docket.

The present bill was filed at January rules, 1928, by John B. Stepp, W. T. Manley, Fred Slater, E. F. Randolph, W. O. Bivens, D. Brown, J. F. Varney, C. M. Gates, D. R. Gates, H. Schwachter, M. V. Crigger, Mont Stepp, Andy New, Jr., Kenneth Stepp, Mrs. J. H. Maynard, Fairview Land Company, a corporation, Lincoln Scaff, E. C. Dutton, C. A. Dutton, A. R. Maynard, and Sam Maynard, for themselves and others similarly situated against the road commission, county court, and Pigeon Creek Realty Company, the object of which is to set aside the decree above set out on the grounds that the bill on which the decree is based was never filed; no process had been issued thereon, and the cause had never matured; that no process had been served on either of complainants, and they had no knowledge that such a suit was pending, and did not learn of the decree until long after its entry and the adjournment of the July term, 1927; that the recitals in the decree that the bill had matured and process had been served were untrue; that complainants own separate parts of the real estate over which the road is built, and have a just defense; that the county court does own a part of the land over which the road runs; but that complainants own separate parts; that the entry of the decree was a fraud upon the court and upon complainants' rights and took from them properties without due process; and they prayed that the decree to be set aside and vacated, and they be permitted to make defense to the purported bill filed against them. To this bill the commission and county court demurred on the ground that the plaintiffs therein were alleged to be separate owners and not owners in common, and that the bill does not allege a common source of title, therefore plaintiffs could not join in the bill; that the bill fails to show any interest of plaintiffs in the land or that they have a meritorious defense to the suit; that the bill contains no recital of fact from which fraud in the entry of the decree can be inferred; and that the recitals in the decree as to the court's jurisdiction are not subject to attack by mere denial that they were not...