Tyler v. Wetzel.

• Decision Date: 20 January 1920
• Citation: 85 W.Va. 378
• Parties: Cadwell C. Tyler v. C. M. Wetzel et al.
• Court: West Virginia Supreme Court

85 W.Va. 378

Cadwell C. Tyler

v.C. M. Wetzel et al.

Supreme Court of Appeals of West Virginia.

Submitted January 14, 1920.

Decided January 20, 1920.

1. Appeal and Error Certification of Questions Raised by Motion Cannot be Offered as Pleading.

The last paragraph of sec. 1 of ch. 135 of the Code does not authorize certification of questions raised by a motion interposed as or for a pleading, or as a substitute therefor. (p. 380).

2. Same Order Granting or Denying Relief Upon Pleadings or Process Cannot be Certified.

Nor can an order either granting or denying relief to any party upon pleadings or process, whether interlocutory or final, be certified for review under said statute. (p. 380).

3. Same Jurisdiction on Certified Questions Limited.

Under it, the jurisdiction of the appellate court is limited to questions arising solely upon the face of a summons, a return of service or a pleading, or, in the latter case, the faces of the pleading attacked and other pleadings to which it responds. (p. 380).

4. Same Motion to Quash Summons for Matter Not on Face Not to be Certified.

Questions raised by a motion made in a chancery suit, to quash the summons and the return thereon, on the ground of unwarranted direction of the former to the sheriff of a county other than that in which the suit was brought and invalidity of service in such other county because of such direction, are not within the scope of the statute and decisions thereof cannot be reviewed upon a certificate. The motion is based upon the bill as well as the process and is made as a substitute for a plea in abatement. (p. 380).

5. Same Ruling on Motion to Quash Summons Not Reviewable on Certificate.

Nor can the appellate court review upon a certificate, a ruling or expression of opinion, made or given in the disposition of such a motion and recited in the order disposing of it, to the effect that a part of the subject matter of the bill, or what is deemed a second cause of action stated in it, is not within the jurisdiction of the court entering the order. (p. 381).

Certified Questions from Circuit Court, Jefferson County. Suit by Cadwell C. Tyler, against C. M. Wetzel and others, to cancel a release of a mortgage and to foreclose the mortgage. Question raised and decided by motion denominated a motion to quash the summons and return of service founded upon the bill as well as upon the process certified.

Question certified dismissed.

J. M. Mason, Jr., for plaintiff.

Brown & Brown for defendants.

Poffenbarger, Judge:

The question decided and certified was raised by a motion denominated a motion to quash the summons and return of service in a chancery suit instituted for the purpose of effecting cancellation of a release of a mortgage and obtaining a decree of foreclosure thereof, though it was founded upon the bill as well as upon the process, as the orders and the court's rulings disclose.

It was based upon the theory of unauthorized and illegal direction of the process to the sheriff of a county other than that in which the suit was brought and consequent illegal service in such other county. This ground was not disclosed by the summons alone, however, for process may be so directed under some circumstances. To make its disclosure complete, the bill had to be included and considered. As originally filed, the latter paper did not allege that the mortgaged land was in Jefferson County in which the suit was instituted. The process went to Wood County and was executed there. In this state of the case, the motion made on a special appearance, was sustained; but, by leave of the court, the bill was amended so as to show that the land was in the former county. Then the motion was renewed and the court overruled it. On the second motion, if not also on the first, another feature of the bill seems to have been relied upon, a demand for settlement of a partnership between the plaintiff and one of the defendants, which is alleged to have been connected with the mortgage and release, by means of a diversion of partnership funds to payment of the mortgage debt and procurement of the release. Deeming this part of the bill to be an assertion of a separate and additional cause of action not within its jurisdiction, because the defendants resided or were served in another county, the court treated it as surplusage.

Under the statute authorizing certification of decisions upon certain kinds of interlocutory orders, the questions raised by the motion and so decided by the court cannot be reviewed here on the certificate. They relate to venue and jurisdiction, de-pendent upon the process, the pleadings and, when the motion was originally made, upon matter dehors the record, as well as the sufficiency of a bill. In a certified case disposed of contemporaneously with this one, it is held that, under this statute, a decision upon the legal...