Yates v. Taylor County Court

• Decision Date: 24 January 1900
• Parties: YATES et al. v. TAYLOR COUNTY COURT.
• Court: West Virginia Supreme Court

35 S.E. 24

47 W.Va. 376

YATES et al. v. TAYLOR COUNTY COURT.

Supreme Court of Appeals of West Virginia.

January 24, 1900

Submitted November 1, 1899

Syllabus by the Court.

1. As a condition precedent to the institution and maintenance of a suit against the county court for any demand for a specified sum of money, founded on contract, except an order on the county treasury, such demand must have been presented to the county court, and have been disallowed by it in whole or in part, unless the court refuses to act on such demand by the close of the first session after that at which it is so presented, or of the second session after it is filed with the clerk, pursuant to section 40, c. 39, of the Code, for presentation.

2. Consent of parties cannot confer upon a court jurisdiction which the law does not confer, or confers upon some other court, although the parties may be consent submit themselves to the jurisdiction of the court. In other words, consent cannot confer jurisdiction of the subject-matter, but it may confer jurisdiction of the person.

3. In courts of limited and inferior jurisdiction, the record must show jurisdictional facts.

4. In order that a valid judgment may be rendered by a justice of the peace, the suit must be brought against a defendant upon whom is the liability, and service of process upon another and different party will not confer jurisdiction of the subject-matter.

5. The judgment of a court ordering or confirming a donation made out of the county treasury without lawful authority is void and will be prohibited.

Application by the Taylor county court for a writ of prohibition against John H. Holt and Thomas G. Yates. Writ granted.

G. H. A. Kunst, for petitioner.

W. R D. Dent, for respondents.

ENGLISH J.

Thomas G. Yates was assigned as counsel by the circuit court of Taylor county to defend one Frank Powell, who was charged with felony; and on the 25th of April, 1899, an order was entered by said court by which he was allowed an attorney's fee of $25, and the same was ordered to be certified to the county court for payment. On the 17th of May, 1899, said Yates brought an action before a justice of said county against the county court to recover said claim in which he alleged he would demand judgment for $25, with interest and costs. The plaintiff, in his complaint, stated that said claim was presented to the county court for payment at its May term, 1899, but does not say that payment thereof was refused. The defendant, in its plea, claimed that the order of the circuit court allowing plaintiff $25 for defending Powell was never presented to defendant by its clerk, and that it did not neglect or refuse to act on the order and certificate, and never disallowed plaintiff's claim, in whole or in part, and that the certificate of the circuit court did not bind or authorize it to levy on the taxpayers for the payment of the same. The defendant made no further defense, the plaintiff proved his claim, and judgment was rendered in his favor for the amount claimed, interest, and costs. An appeal was taken to the circuit court. On the 23d of September the defendant moved the circuit court to quash the summons, which motion was overruled. The defendant also filed a plea in writing, to which the plaintiff replied generally, and defendant moved the court to reject the plaintiff's account, indorsed, "Lodged in the clerk's office 21st day of September 1899," which motion the court overruled. The case was submitted to a jury, which found a verdict in favor of the plaintiff for $25, and judgment was rendered thereon against the defendant, which thereupon presented a petition to a judge of this court, praying that a writ of prohibition be awarded it, to prevent said circuit court from further proceeding in said action; and a rule was awarded, returnable to the first day of this term. The respondent Yates demurred to the petition of the county court, and moved to quash the rule and dismiss the petition.

The question presented for consideration by this record is whether the justice or the circuit court had jurisdiction of the action brought by Yates. Section 41 of chapter 39 of the Code provides that "no suits shall be brought against a county court for any demand for a specified sum of money founded on contract, except an order on the county treasury, until such demand has been presented to such court and has been disallowed by them in whole or in part." See Chapman v. Wayne County Court, 27 W.Va. 496. In 16 Enc. Pl. & Prac. p. 1132, the law is stated thus: "When the jurisdiction of an inferior court is derived from a statute prescribing the manner of procedure in an action, it may be prevented by the writ of prohibition form departing from the manner prescribed." See Wilkinson v. Hoke, 39 W.Va. 403, 19 S.E. 520; West v. Ferguson, 16 Grat. 270. In Ex parte Ellyson, 20 Grat. 10, it is held: "The writ of prohibition is only a proper proceeding to restrain a judge from exceeding his jurisdiction, and not to correct an erroneous judgment in a case in which he has jurisdiction." See Buskirk v. Judge of Circuit Court, 7 W. Va. 91. High, in his work on Extraordinary Legal Remedies (section 762), in speaking of the writ of prohibition, says: "The object of the writ being to restrain subordinate judicial tribunals of every kind from exceeding their jurisdiction, its use in all proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined strictly to the exercise of those powers with which it has by law been intrusted." And in section 764 the author says: "The appropriate function of the remedy is to restrain the exercise of unauthorized judicial or quasi judicial power, which is regarded as a contempt of the state or sovereign, and which may result in injury to the state or its citizens." The respondent J. H. Holt denies that he is proceeding without jurisdiction or authority of law, but, on the contrary, avers, as is shown by the record filed with the petition, that said circuit court took cognizance of said cause at the special instance of the petitioner, who now denies the jurisdiction of said court, after appealing to it, simply because the decision was adverse. In 12 Enc. Pl. & Prac. p. 126, it is said: "It is accordingly a well-settled and universally applied principle that consent of parties cannot confer upon a court jurisdiction which the law does not confer, or confer upon some other court, although the parties may by consent submit themselves to the jurisdiction of the court. In other words, consent cannot confer jurisdiction of the subject-matter, but it may confer jurisdiction of the person,"--citing numerous authorities. It says also (Id. p. 201): "Every presumption is in favor of the regularity of the proceedings of courts of general jurisdiction, even though the record is silent. The foregoing rules generally apply to courts of limited and inferior jurisdiction, the only difference between courts of general and courts of special jurisdiction being that the record of the latter must show jurisdictional facts." See, also, Galpin v. Page, 18 Wall. 350 (Syl., point 2, latter clause), 21 L.Ed. 959. The defendant, in its plea filed before the justice, denied that the order of the circuit court allowing plaintiff $25 for defending Powell was ever presented by its clerk, or that it neglected or refused to act on the order, and claims that it never disallowed said claim, in whole or in part; and nothing appears in the record to contradict the allegation. The presentation of the claim to the county court, and its refusal to allow the same in whole or in part, having been made a condition precedent to the institution of a suit for the same against said court, and it not appearing affirmatively from the record that there had been such action on the part of the county court, we must hold that neither the justice nor the circuit court had jurisdiction to hear and determine this case.

In order that a valid judgment may be rendered by a court whether of limited or general jurisdiction, the suit must be brought against the party upon whom the liability rests. In other words, where A. owes a debt, a suit brought against B., and process served upon him, will not authorize the rendition of a judgment against B. for the debt of A. Now, unless this $25 was a debt of the county of Taylor, suit brought against said county, and process served on it, would not give the court jurisdiction to render judgment on the claim. Was the county in any manner liable? We find no statute fixing the liability for its payment upon the county, and, when we look to the statutes providing for the wants of persons charged with felony, it appears from section 3 of chapter 161 that medical attendance and clothing for persons in jail, charged with felony, shall be paid out of the state treasury. The service of a stenographer in taking down the testimony on his trial is also thus paid. And section 1 of chapter 159 of the Code provides that the accused shall be allowed counsel, if he so desires, to assist in his defense, a copy of the indictment, and a list of the jurors selected or summoned for his trial, without fee; and, while this may be interpreted, without expense to the accused, yet, if it is to be paid by the county, why is the statute silent on this point? If the manner of payment is to be governed by the statute controlling the payment of his other necessary expenses, it would be paid by the state, and not by the county. There is no statute that even by the most remote analogy makes this $25 a charge against the county. If it is claimed that the judgment fixes the liability on the county, and for that...