White v. Crump
| Citation | 19 W.Va. 583 |
| Parties | WHITE v. CRUMP AND SHANKLIN. |
| Decision Date | 06 May 1882 |
| Court | West Virginia Supreme Court |
Submitted Aug. 21, 1880.
1. Where a State Constitution divides the government into three distinct and separate departments, viz: The Legislative, the Executive, and the Judicial, without special authority in the Constitution for so doing it is beyond the power of the Legislature to authorize courts to set aside judgments and grant new trials in eases after the term, at which the judgments were recovered, has passed, for such action would be judicial. (p. 592.)
2. But the people of the State in their sovereign capacity have the right in adopting a Constitution for their government to do anything which they are not prohibited from doing by the Federal Constitution, which was made and ratified by the States themselves. (p. 592.)
3. Before the ratification of the Fourteenth Amendment to the Constitution of the United States the Legislature might, if authorized by the State Constitution, devest vested rights of property, when such rights were not vested by contract. (p 592.)
4. Since the ratification of the Fourteenth Amendment to the Federal Constitution vested rights of property can only be devested by a State by " due process of law." (p 592.)
5. A judgment founded on a tort is in no sense a contract therefore section 35 of Article VIII of our Constitution, as it only applies to judgments founded on tort, is not inhibited by section 10 of Article I. of the Constitution of the United States, as it does not impair the obligation of a contract. (p. 592.)
6. A supersedeas-bond executed under the requirement of the law for the purpose of indemnifying the plaintiff, while the judgment is being reviewed, has no effect apart from the judgment itself; and for its binding force it depends upon the fate of the judgment. If the judgment is void, the supersedeas-bond is necessarily void also, and such a bond where the judgment is void, is not affected by section 10 of Article I of the Constitution of the United States. (p. 593.)
7. Section 35 of Article VIII of the Constitution of West Virginia, which declares, that " no citizen of West Virginia, who participated in the war between the Government of the United States and a part of the people thereof on either side, shall be held liable civilly or criminally; nor shall his property be seized or sold on final process issued on judgments heretofore recovered or otherwise because of an act done according to the usages of civilized warfare in the prosecution of said war by either of the parties thereto," operates ex proprio vigore. (p. 595.)
8. A special plea, to an action of debt on a supersedeas-bond that the original judgment, which on writ of error had been affirmed by the Supreme Court of Appeals of the State, " was recovered because of an act done by a citizen of this State according to the usages of civilized warfare in the prosecution of the late war between the Government of the United States and a part of the people thereof," presents a complete defence to the action. (p. 595.)
9. Section 35 of Article VIII of the Constitution of the State treats judgments as property and provides for the carrying out of the provision by " " due process of law; " and such judgments, as were contemplated by said section, were not to be declared void, until " by due process of law it was ascertained, that they were recovered because of acts done according to the usages of civilized warfare in the prosecution of the war," and when so ascertained, they were to be treated as nullities. (p. 595.)
10. " Due process of law as used in said section means, in the due course of legal proceedings, according to the rules and forms, which have been established for the protection of private rights, securing to every person a judicial trial before he can be deprived of his property. (p. 595.)
11. A trial in an action on a supersedeas-bond upon issues joined upon special pleas, which set up the defence, that the original judgment was " recovered because of an act done by a citizen of this State according to the usages of civilized warfare, & c.," and which issues were found for the defendants, and judgment for the defendants on the only ground, that the original judgment was void, and in effect deprived the plaintiff of the benefit of his judgment, was " " due process of law." (p. 595.)
12. If in time of war an act is done in good faith with a view to assist the side, in whose service the actor was engaged, and was such an act, as would be recognized by civilized nations as according to the usages of civilized warfare, although done without special orders, the actor could not be held liable therefor. (p. 596.)
13. An instruction in the language of the pleadings although general is not erroneous; therefore it was not error to instruct the jury: " If they believed the act done by the defendants was according to the usages of civilized warfare, they must find for the defendants." If the plaintiff had desired, he had the right to have the court define to the Jury the meaning of the phrase, " " usages of civilized warfare." (p. 597.)
14. In time of war an officer has the right to arrest and imprison any one, whom he suspects and has reason from general representation or otherwise to suspect of giving aid and comfort to the enemy or of intending to give such aid and comfort; and such arrest and imprisonment is " according to the usages of civilized warfare." (p. 599.)
Writ of error and supersedeas to a judgment of the circuit court of the county of Summers rendered on the 25th day of September, 1879, in an action in said court then pending, wherein Andrew White was plaintiff, and William B. Crump and Louis A. Shanklin were defendants, allowed upon the petition of said White.
Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the judgment complained of.
JOHNSON, PRESIDENT, furnishes the following statement of the case:
The plaintiff, White, instituted his action in debt upon a supersedeas-bond in the circuit court of Summers county on the 22d day of January, 1877, against the defendants Crump and Shanklin. His declaration alleged, that the said defendants on the 28th day of January, 1868, together with one William H. French, who was then living, executed a bond in the penalty of four thousand dollars, payable to the plaintiff, to which bond was the following condition:
The declaration alleges, that the said Supreme Court of Appeals on the 15th day of March, 1870, affirmed said judgment and awarded damages and costs, which have not been paid either by the said William H. French in his lifetime or by the said defendants, his sureties, since his death, but though often requested they have refused to pay the same, and still refuse, to the plaintiffs damage $4,000, & c. The defendants pleaded " conditions performed" and tendered three special pleas, in writing, to which the plaintiff objected, but the objection was overruled and the pleas filed. At a subsequent day, to-wit: on the 17th day of April, 1879, the plaintiff by his attorney moved to reject the said three special pleas, which motion the court overruled, and the plaintiff replied generally to each of said pleas. The case was then tried by a jury, and a verdict was rendered for the defendants. The plaintiff moved the court to set aside this verdict and to grant him a new trial, which motion the court overruled and entered judgment upon the verdict. The plaintiff during the trial saved three good bills of exceptions, which were duly signed by the court. The first bill of exceptions was to the judgment of the court in admitting certain testimony; the second to the refusal of the court to give an instruction asked by the plaintiff, and the modification of another instruction asked by the plaintiff; the third, to the refusal of the court to set aside the verdict and grant a new trial.
To the judgment rendered upon the verdict of the jury, the plaintiff obtained from this court a writ of error.
David E. Johnston for plaintiff in error cited the following authorities: Gilm. 838; Cool. Const. Lim. 47-49, 407, 408; Id. 61; Big. Estopp. 75, 81; 13 Gratt. 152; 27 Gratt. 624; 19 Gratt. 14; 22 Gratt. 378; 26 Gratt. 765; 29 Gratt. 494; 10 Pet. 449; 6 Wall. 268; 10 Wall. 308; Broome Leg. Max. 33; Sedg. Stat. & Const. Law 313; 7 Johns. 477; 11 Mass. 396; 45 Me. 507; 2 Greenl. 275; 17 B. Mon. 176; 12 Wheat. 349; 3 Wheat. 28; 11 Wheat. 420; 8 Mass. 423; 13 Pick 532; 7 Ind. 470; 7 Blackf. 154; Id. 623; 8 Blackf. 56, 58, 116, 160, 177, 455; 1 Ind. 24; 2 Ind. 65; 5 Ind. 348; 8 Ind. 533; 26 Cal. 46; 3 Vt. 507; 2 Aik. 284; 15 Ohio St. 207; 13 Wis. 37; 19 Wis. 17; 1 Dan. Chy. Pr. 77; 1 Aik. 314; 5 Tex. 433; Dan. Ind. Dig. 215, sec. 89; 41 Mo. 63; 40 Ala. 547; 41 Ala. 153; 24 Ark. 91; 1 N.H. 199...
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