Western Auto Supply Co. v. Dillard

• Decision Date: 26 March 1970
• Docket Number: No. 12801,12801
• Citation: 153 W.Va. 678,172 S.E.2d 388
• Parties: WESTERN AUTO SUPPLY COMPANY, v. Edwin S. DILLARD and Mary Alice Dillard.
• Court: West Virginia Supreme Court

Page 388

172 S.E.2d 388

153 W.Va. 678

WESTERN AUTO SUPPLY COMPANY, v. Edwin S. DILLARD and Mary Alice Dillard.

No. 12801.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 27, 1970.

Decided Feb. 17, 1970.

Rehearing Denied March 26, 1970.

Syllabus by the Court

1. This Court will not consider on appeal nonjurisdictional questions which have not been acted upon by the trial court.

2. When a case involving conflicting testimony has been fairly tried under proper instructions the verdict of the jury will not be set aside unless it is contrary to the weight of the evidence or is without any evidence to support it.

3. It is the peculiar and exclusive province of the jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses, regarding them is conflicting and the finding of the jury upon such facts will not ordinarily be disturbed by this Court.

4. A valid judgment of a sister state is entitled to full faith and credit in the courts of this state under Article IV, Section 1, of the Constitution of the United States.

5. Full faith and credit must be given to a judgment of a sister state if it is not successfully attacked on jurisdictional grounds or for fraud in its procurement.

6. When a verdict of a jury has been improperly set aside by the trial court, this Court will reinstate the verdict and render judgment upon such verdict. Martin & Seibert, Clarence E. Martin, Jr., Martinsburg, for appellant.

Rice, Hannis, Rice & Wagner, Lacy I. Rice, Sr., Martinsburg, for appellees.

HAYMOND, Judge.

On this appeal granted by this Court January 27, 1969, the plaintiff, Western Auto Supply Company, a corporation, seeks reversal of the final judgment of the Circuit Court of Jefferson County rendered June 17, 1968, which granted the motion of the defendant Edwin S. Dillard to set aside the verdict and the judgment entered upon the verdict on May 16, 1968, in favor of the plaintiff, and reinstatement of the verdict and the entry of judgment by this Court upon the verdict in favor of the plaintiff.

This action is based on a final judgment rendered by the Seventh Judicial District Court of the State of Nevada, in and for the County of White Pine, a court of general jurisdiction, in favor of the plaintiff and against Edwin S. Dillard and Thomas G. Streeter, dba Western Auto of Ely, Nevada, Thomas G. Streeter and Florence Streeter, and Edwin S. Dillard and Mary Alice Dillard, jointly and severally, for $36,743.87, with interest at the rate of 7 per cent per annum from date until paid, and $90.75 costs. The plaintiff contends that the foregoing judgment is a valid judgment of a court of another state of the United States and as such is entitled to full faith and credit under Article IV, Section 1, of the Constitution of theUnited States, which provides that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. On the contrary the defendant Edwin S. Dillard contends that the judgment is not a valid judgment and is subject to attack on the ground that the district court in Nevada did not have jurisdiction of Edwin S. Dillard and Mary Alice Dillard who are the defendants in this action.

At the conclusion of all the evidence on May 16, 1968, the jury returned a verdict in this form: 'We the jury find that the Court in the State of Nevada had jurisdiction of the Defendant, Edwin S. Dillard, individually, in that E. R. Miller, Jr., Attorney in Nevada, represented him individually with the knowledge, authorization and consent of Edwin S. Dillard, and therefore return a verdict in favor of Western Auto Supply Company in the sum of $41,363.37.' The plaintiff moved the circuit court to enter judgment on the verdict and accordingly it was ordered that the plaintiff recover of and from the defendant, Edwin S. Dillard, $41,363.37, with interest at the rate of six per cent per annum until paid and costs. The defendant Edwin S. Dillard then moved the court to set aside the verdict and to enter judgment for the defendant or to grant to defendant a new trial. By its final judgment rendered June 17, 1968, the trial court set aside the verdict and the judgment entered upon it on May 16, 1968 and rendered judgment in favor of the defendants and that the plaintiff take nothing and awarded costs against the plaintiff. From this judgment this appeal was granted upon the application of the plaintiff.

The controlling questions for decision are whether the district court of Nevada had jurisdiction to render the judgment here in suit against the defendant Edwin S. Dillard and whether the verdict of the jury in favor of the plaintiff and against the defendant Edwin S. Dillard for $41,363.37 is supported by the evidence and should not have been set aside by the trial court.

In this Court the defendant Edwin S. Dillard, herein sometimes referred to as the defendant, asserts that the judgment here in suit is a joint judgment against both defendants and could not be enforced against the defendant Edwin S. Dillard Severally and individually. As this question was not raised and passed upon by the circuit court, it will not be considered by this Court on this appeal. Many cases hold that this Court will not consider on appeal nonjurisdictional questions which have not been acted upon by the trial court. In Re: Morgan Hotel Corporation, 151 W.Va. 357, 151 S.E.2d 676; Korzun v. Shahan, 151 W.Va. 243, 151 S.E.2d 287; Work v. Rogerson, 149 W.Va. 493, 142 S.E.2d 188; Pettry v. The Chesapeake and Ohio Railway Company, 148 W.Va. 443, 135 S.E.2d 729; Dunning v. Barlow and Wisler, Inc., 148 W.Va. 206, 133 S.E.2d 784; Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770; Sands v. Security Trust Company, 143 W.Va. 522, 102 S.E.2d 733; In Re: 'The Estate of Amanda Nicholas, Deceased, 142 W.Va. 80, 94 S.E.2d 452; Cook v. Collins, 131 W.Va. 475, 48 S.E.2d 161; Highland v. Davis, 119 W.Va. 501, 195 S.E. 604; Nuzum v. Nuzum, 77 W.Va. 202, 87 S.E. 463.

In the Cook case this Court said: 'This Court, having no original jurisdiction of this cause and acting only as an appellate court, will not consider nonjurisdictional questions not acted upon by the trial court. * * *. To consider and decide nonjurisdictional questions in this Court, not acted upon by the trial court, would be the assumption of jurisdiction by this Court which it does not possess.' In the Highland case this Court held in point 4 of the syllabus that 'This Court will not consider questions not acted upon by the trial court.' See also Weatherford v. Arter, 135 W.Va. 391, 63 S.E.2d 572; Weese v. Weese, 134 W.Va. 233, 58 S.E.2d 801; Posten v. Baltimore and Ohio Railroad Company, 93 W.Va. 612, 117 S.E. 491.

Upon the question whether the Nevada court had jurisdiction of the defendant Edwin S. Dillard the evidence is conflicting and the question of jurisdiction depends upon whether E. R. Miller, Jr., an attorney of Ely, Nevada, who entered a general appearance in behalf of the defendant Edwin S. Dillard, was authorized to represent him, as well as the other defendants, in the action in the Nevada court. The evidence on this point, in behalf of the plaintiff, consisted of the testimony by deposition of Miller and Thomas G. Streeter, a partner with the defendant Edwin S. Dillard in the limited partnership of Western Auto of Ely, Nevada. It is clear that Mary Alice Dillard was not a member of this partnership.

It is undisputed that neither of the defendants in this action was served with process in Nevada and that both of them were absent from Nevada when the final judgment was entered in the action pending in the district court of that state.

It is also undisputed that though Edwin S. Dillard was in Ely, Nevada, on the 11th, 12th and 13th of June, 1965, when the action in the district court of that state was instituted on June 11, 1965, he left the State of Nevada immediately after consulting his attorney in Virginia, Edward S. Graves, who advised him to leave the State of Nevada immediately for the purpose of avoiding service of process on him in that state.

Miller testified that when the action was instituted by Western Auto Supply Company and an injunction had been issued to close the store owned by the partnership and operated by Streeter, Streeter employed him to represent all the defendants and that he did so. All the orders in the case, including a preliminary judgment for $100,400.71 rendered July 16, 1965 and the final judgment rendered July 28, 1966 for $36,743.87, the balance of the alleged indebtedness owing by the defendants to the plaintiff in that action after allowing credits in the amounts of $50,056.99 and $13,599.85, in favor of the defendants, recited Miller's appearance for the defendants. Miller further testified that Streeter paid him his fee and that he did not bill Dillard for a fee and was not paid any fee by Dillard. Streeter testified that he employed Miller to represent all the defendants in the Nevada court action and that he so informed Dillard. This Dillard denied.

Dillard testified that he never employed Miller to represent him and Mary Alice Dillard also testified that she did not know Miller and was not in Nevada while the case was pending and that she never authorized Miller to represent her. Graves testified that he never authorized Miller to represent the defendant Edwin S. Dillard in the Nevada court proceeding. Both Dillard and Graves testified that they did not keep in touch with the proceedings in the Nevada court. Dillard testified that he did not know of the judgment until the present counsel for the plaintiff in this action wrote him concerning the judgment of $36,743.87 and that he did not receive copies of the orders in the case. The testimony by Graves indicated that he did not know about the final judgment in the action but that he knew about the judgment for $100,400.71 and sent a copy...