Stepp v. State Road Commission

Decision Date10 December 1929
Docket Number6344.
Citation151 S.E. 180,108 W.Va. 346
PartiesSTEPP et al. v. STATE ROAD COMMISSION et al.
CourtWest Virginia Supreme Court

Submitted November 20, 1929.

Rehearing Denied Jan. 20, 1930.

Syllabus by the Court.

In a suit to set aside and annual a decree, entered in a former cause, on the ground that process was not issued and served on the defendants therein, and the decree so attacked declares that the cause was heard upon process duly issued served, and returned to the clerk's office as to all of the defendants, and there is sharp conflict between the sheriff and his deputies on the one side and the complainants on the other as to the actual service of the process, one affirming and the other denying (the process and service thereon being lost), the recitals in the decree should be taken as true, in the absence of anything in the record contradictory thereof.

Where a decree recites that the cause was heard upon process duly issued, served, and returned as to all defendants, the presumption is that the court had before it the process so served; and where such process with the returns thereon has disappeared from the file of the cause, and there is sharp conflict as stated in point 1, above, the presumption in favor of the decree has not been successfully rebutted.

"Delivery of a bill in a chancery suit to the clerk in his office is a 'filing of the bill,' though no endorsement on it of filing is made." Darnell v. Flynn, 69 W.Va 146, 71 S.E. 16.

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. Manley, 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 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 Ste pp, Mrs. J. H. Maynard, Fairview Land Company, a corporation, Lincoln Scarf, 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 true. They also answered the bill and denied specifically every material allegation. On the contrary, they averred that the bill was regularly filed and matured for hearing, and that process was issued, served, and returned upon each of defendants named therein prior to June rules, 1927; that defendants therein knew of the pendency of the suit long before the entry of the final decree and had employed counsel to represent them; and that the county court owns in fee the land in controversy by virtue of the railroad company deed dated July 24, 1927, which is exhibited. The parties went to proof, and on July 17, 1928, the court heard the case on the bill, joint answer, replication thereto, upon all the former orders, and the evidence; and entered the decree now complained of which sets aside, annuls, and vacates the decree of August 3, 1927, entered in the injunction suit. This appeal followed.

No action seems to have been taken on the written demurrer, and, the court having decided on the merits, it will be presumed that the demurrer was overruled. It will not be necessary to consider the demurrer.

The injunction bill and exhibits on which the decree of August 3, 1927, was based are not in the record. It is here contended by appellees that the said bill is not sufficient to sustain the decree. In its absence, and nothing being shown to the contrary, we must assume that it contained sufficient averments under oath and sufficient exhibits to warrant the decree. Appellees had the burden of proving that the court exceeded its power under the averments of the bill when they attacked the decree on that ground, the answer having denied the averment of their bill. Conjecture as to what the bill and exhibits contained in the way of charging ownership and possession of the land in controversy does not discharge that burden. It is said that the injunction order purports to recite the substance of the bill. We do not so construe it.

The evidence is largely over the disputed fact that process on the injunction bill was issued and served; and whether appellees had any notice of the pendency of the suit. Many of the appellees say they were never served with process, but admit having been served with the notice of the temporary injunction. One or two of them say they were served, not only with notice of the injunction, but with summons to answer the suit. The sheriff and his deputies say that the summons, as well as the temporary injunction order, was served on certain of the appellees (all but four), naming them; and one of the deputies says he served the summons on others whose names he did not recall. The evidence of the officers is to the effect that the process on the bill which came into their hands was served on all of the defendants therein named. Unfortunately, the process with returns thereon, if any had been indorsed thereon, had been misplaced. It was stated at the bar of the court that they had been found pending this appeal, but not being before us we can know nothing of the contents or returns thereon. Liberty Coal Co. et al....

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