White v. Lazzelle

• Decision Date: 05 May 1925
• Docket Number: 5291.
• Citation: 128 S.E. 303,99 W.Va. 109
• Parties: WHITE, INTERNAL REVENUE COLLECTOR, v. LAZZELLE, CIRCUIT COURT JUDGE.
• Court: West Virginia Supreme Court

128 S.E. 303

99 W.Va. 109

WHITE, INTERNAL REVENUE COLLECTOR, v. LAZZELLE, CIRCUIT COURT JUDGE.

No. 5291.

Supreme Court of Appeals of West Virginia.

May 5, 1925

Submitted January 14, 1925.

Rehearing Denied, with Modification, June 10, 1925.

Syllabus by the Court.

Where on appeal from a decree adjudicating the principles of the cause, the appellees move to dismiss on the ground that subsequent decrees included in the record, but not expressly appealed from, carrying out the principles of the first decree, are final and binding on the parties, and for that reason a reversal of the decree appealed from would avail nothing to the appellant; the overruling of the motion and reversal of the original decree constitutes an adjudication rendering the subsequent decrees of no validity or effect.

Mandamus will lie in such case compelling the circuit court to disregard the subsequent decrees and proceed in accordance with the decision of this court on the appeal.

Suit by Albert B. White, Internal Revenue Collector for District of West Virginia, on behalf of the United States, for mandamus to be directed to I. Grant Lazzelle, Judge of the Circuit Court of Monongalia County. Writ awarded.

T. M McIntire, Sp. Asst. U.S. Atty., of Parkersburg, for relator.

Cox & Baker, of Morgantown, for respondent.

LITZ, J.

During the year 1920 the Knob Coal Company, a corporation, became largely indebted to the federal government for taxes. December 14, 1920, the respondents J. M. G. Brown, Mary B Brown, Robert D. Hennen, Louise Reiner Hennen, Noah A. Moore Nettie E. Moore, Jesse V. Moore, and Lona W. Moore, being the owners of all the capital stock of the Knob Coal Company and the Markley-Dale Coal Company, a corporation, in consideration of the sum of $300,000, sold and delivered the same to the American Gas Coal Company, a corporation. $125,000 of the purchase price having been paid in cash, to secure the payment of the residue, the American Gas Coal Company, Knob Coal Company, and Markley-Dale Coal Company, by deed bearing date of January 3, 1921, conveyed to a trustee the properties belonging to these corporations situated in Monongalia county. On October 8, 1921, the said respondents instituted a chancery suit, in the circuit court of Monongalia county, against the American Gas Coal Company, Knob Coal Company, Markley-Dale Coal Company, and others. The bill filed therein at November rules, 1921, charged insolvency of the American Gas Coal Company, and prayed for administration of its assets. Thomas Ray Dille, a commissioner in chancery, to whom the cause was referred to ascertain and report the assets and liabilities, in the order of priority, of the American Gas Coal Company, Knob Coal Company, and Markley-Dale Coal Company, filed his report finding, inter alia, that the debt of Knob Coal Company to the government, in the sum of $38,653.90, constituted a claim against the assets of this corporation superior to that of said respondents, under the deed of trust, amounting to $171,993.25. Sustaining exceptions of the said respondents to the commissioner's finding, by decree of November 27, 1922, the circuit court decreed that the claim of said respondents under the deed of trust was superior to that of the government against the assets of Knob Coal Company.

January 8, 1923, a decree was entered directing special commissioners to make sale of the assets belonging to the three corporations; and, such sale having been made and reported pursuant thereto, another decree was rendered April 6, 1923, confirming the sale and directing distribution of the proceeds in accordance with the decree of November 27, 1922. June 26, 1923, an appeal and supersedeas was awarded by this court to the said decree of November 27, 1922. On February 6, 1924, the said respondents filed a written motion to dismiss the appeal and supersedeas on two grounds; one being that the decree appealed from was merely interlocutory and therefore not reviewable. To sustain this motion, which was submitted at the hearing of the case, it was argued on brief:

"The appeal and supersedeas is awarded to the decree of the 27th of November, 1922, alone. No subsequent decree was appealed from. The decree of November 27, 1922, was interlocutory and not final. It only ascertained the amounts and priorities of the liens, but did not pronounce the sentence of the law thereon, or order a sale to satisfy same, or give any relief in relation thereto. It was neither final nor an adjudication of all the principles of the cause, but only a part of them in an interlocutory way. The decree, being interlocutory, the amounts and priorities there ascertained were subject to change or revision by the court before a decree of sale; and in fact such change to some extent was made by the later decrees in the cause. At subsequent terms of the court, a decree of sale was entered, and a decree of confirmation and distribution, as well as other orders and decrees, none of which were appealed from, but stand unquestioned. If the decree of distribution is to stand unappealed from, the appellant could obtain no relief by reversal of the previous interlocutory decree ascertaining liens and priorities."

Overruling the motion to dismiss, this court, by decision of February 26, 1924, reversed the decree of the circuit court of November 27, 1922, in so far as it sustained exceptions to the report of Commissioner Dille, and, overruling said exceptions, confirmed the said report. J. M. G. Brown et al. v. American Gas Coal Co. et al., 95 W.Va. 658, 123 S.E. 412. By the decree of reversal it is--

"adjudged, ordered, and decreed that the decree of the circuit court of Monongalia county, pronounced in this cause on the 27th day of November, 1922, be and the same hereby is modied and corrected so as to give priority to the claim of the collector of internal revenue for the district of West Virginia, for the use of the United States of America, against the Knob Coal Company, amounting to the sum of $38,653.90, over the claims of appellees, J. M. G. Brown and others, under the deed of trust dated the 3d day of January, 1921, and that the commissioner's report as to the amount of the federal income and excess profits taxes, and its priority in payment over the debt of appellees, secured by said deed of trust, be and the same is confirmed and the exceptions thereto overruled."

In passing on the ground for dismissal, that the decree appealed from was not final, Judge Lively, speaking for the court, said:

"On the second point, it is apparent that the decree of November 27, 1922, appealed from is a final decree ascertaining all of the assets and adjudicating the rights and priorities of the parties, and that the subsequent decrees of sale and distribution in accordance with the decree fixing amounts and priorities simply carry into effect the former decree and make no change in the status of the parties. The decree of sale and distribution is dependent upon and ancillary to the final decree adjudicating the principles of the cause and the rights of the parties. Richmond v. Richmond, 62 W.Va. 206, 57 S.E. 736; Hill v. Cronin, 56 W.Va. 174, 49 S.E. 132." After denial of a rehearing to the said respondents, the circuit court, over the protest of counsel for the government, on November 18, 1924, entered the following order:

"This cause came on this day to be further and finally heard upon the papers heretofore read and considered, and upon the orders and decrees hereinbefore had and entered, and upon the mandate of the decision and the decision and opinion of the Supreme Court of Appeals rendered in

...