The City Of Wheeling v. The Chesapeake
| Decision Date | 27 November 1917 |
| Citation | 81 W.Va. 438 |
| Parties | The City of Wheeling v. The Chesapeake & PotomacTel. Co. of West Va. |
| Court | West Virginia Supreme Court |
Courts Certification Statute.
The sufficiency of a bill for an injunction, no plea competent to put that question in issue having been previously filed or disposed of by the circuit court, can not, under section 1, of chapter 135, of the Code, be properly certified to this court by the judge of the circuit court, based alone on his vacation order awarding the temporary injunction prayed for.
(Poffenbarger, Judge, concurring).
Suit for injunction by the City of Wheeling against the Chesapeake & Potomac Telephone Company of West Virginia and others. Questions certified.
Response to questions certified declined for want of jurisdiction.
M. J. Cullinan, J as. W. Ewing, and Frank W. Nesbitt, for plaintiff.
Caldwell & Caldwell, C. Walter Artz, Wm. G. Hamilton, and J. Bernard Handlan, for defendants.
The question attempted to be certified by the judge of the circuit court of his own motion, pursuant to section 1, chapter 135, Code of West Virginia, 1916, is whether the bill is; bad upon any of the numerous grounds certified.
This question, so far as the record shows, was not passed upon by the circuit court, or by the judge thereof, otherwise than by a vacation order, made in chambers on November 10th, 1917, on bill and exhibits, without other pleadings, but reciting appearance by and arguments of counsel for plaintiff and defendants, and awarding the injunction prayed for until the further order of the court, the same not to take effect except upon the plaintiff giving the bond prescribed in the order. No demurrer to the bill was interposed. One might have been tendered perhaps, but could not have been then actually filed and disposed of for the proceeding was in vacation and not in term. Section 12, of chapter 133, of our Code, as interpreted, gives right to a defendant, on motion made in vacation to dissolve an injunction, to present his verified answer, to be treated as an affidavit, but this is as far as our decisions go. Goddin v. Vaughn, 14 Grat. 102; Hayzlett v. McMillan, 11 W. Va. 464; First National Bank v. Huntington Distilling Co., 41 W. Va. 530, 531; McKell v. Collins Colliery Co., 46 W. Va. 625; Zell Guano Co. v. Heatherly, 38 W. Va. 409.
A question not presented by counsel in briefs or oral argument, but which we must raise and answer for ourselves, is one of jurisdiction. Does section 1, of chapter 135, of the Code, give us jurisdiction to dispose of the sufficiency of a bill upon the certificate of the judge, after the award of a preliminary injunction in vacation, as proposed in this case? We think not. The provision of the statute is: "Any question ai'ising upon the sufficiency of a summons or return of service, or challenge of the sufficiency of a pleading, in any case within the appellate jurisdiction of the supreme court of appeals, may, in the discretion of the court in which it arises. and shall, on the joint application of the parties to the suit, in beneficial interest, be certified by it to the supreme court of appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certified back."
Generally our jurisdiction is limited by statute to final judgments and decrees of the circuit courts. This provision "of the statute was enacted, however, as an aid to the prompt and economical administration of justice, but as interpreted by section 5, of rule 1, of this court, it presupposes court action, and when involving the sufficiency of pleadings,...
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