Railway Co. v. County Court , 123 W. Va. 461 ( 1941 )

On the merits of this case, I am in full agreement with the views expressed by Judge Fox in his dissenting opinion; but certain insuperable difficulties, in my judgment, render relief to the petitioners at this late date, wholly impracticable. No writ of supersedeas was actually issued. The levy order in question was not superseded, nor in any way placed in abeyance. We must assume that the levy, made August 15, 1939, was perfected in regular course; that the tax books were made up in due time; that the sheriff (who is not a party to this proceeding) has collected the bulk of these taxes and disbursed the same on proper orders from the proper fiscal bodies; and that all unpaid taxes for the year 1939, were returned as delinquent June 30, 1940. What can we now do in June, 1941? Can we now rescind the levy order of August 15, 1939, after it has been fully executed? Can a new and valid levy be made in 1941 for 1939? Can any tax levy be made nunc pro tunc? The taxpayers and the taxable property are not the same. True, the statute, Michie's Code 1937, 11-8-22, provides that "If money is collected under any order which is afterward rescinded or reversed, the collecting officer shall, upon demand, refund any payment to the person from whom it was collected." But the provision would seem to apply only where the proceeding has been strictly according to the statute, and the levy superseded. The annulment sought, therefore, has become futile. In such a case, relief will be denied, notwithstanding the original merits of petitioners' case. Tynes v. Shore,117 W. Va. 355, 185 S.E. 845; State v. Jones, 81 W. Va. 182,94 S.E. 120; Wildasin v. Long, 74 W. Va. 583, 82 S.E. 205; State v. Lambert, 52 W. Va. 248, 43 S.E. 176; 4 C.J.S., page 1967; 3 Am. Jur., page 308. This rule is especially applicable where a supersedeas could have been, but was not, issued.Winter v. State Road Commission, 116 W. Va. 200, 179 S.E. 73;Commercial Credit Co. v. Altizer, 107 W. Va. 365, 148 S.E. 322;Thornton v. Manchester Investment Co., 97 Ga. 342, 22 S.E. 987;Moller v. Gottsch, 107 Iowa 238, 77 N.W. 859.

The relief against an unlawful levy provided for in Michie's Code, 1937, 11-8-22, is plainly intended to be prompt and summary. It is preventive, not curative. It must be awarded, if at all, when the collection of the illegal taxes can be prevented, and while a lawful levy may still be made.

I cannot bring my judgment into concurrence with that of the majority wherein it holds that by reason of the failure to issue and execute the writ of supersedeas, the lower court never acquired jurisdiction of the case. The statute says:

"Within forty days after an order for a levy the circuit court of the county, or the judge in vacation, may allow a writ of supersedeas on the petition of at least twenty-four persons interested in reversing the order."

The statute thus, expressly, confers upon the court the jurisdiction in question upon the presentation of the requisite petition in proper time. In the instant case, there was a petition; it contained all proper matter; it was signed by the statutory number of interested persons; it was presented within the proper time; it was received, ordered filed, and acted upon by the court in the manner in which the statute authorized action. The jurisdiction of the court was properly invoked and responded to. This was jurisdiction of the subject matter. An ancient case (Overstreet v. Marshall, 3 Call 192, decided in 1802), concerning a writ of supersedeas, held that the proceeding for the writ was fully commenced by the filing of the petition therefor, and an order allowing the same, though no writ actually issued, the court saying: "The judge's order for a writ of supersedeas, is the true commencement of the proceeding here; * * *." It is difficult to conceive how a proceeding could be "commenced" without the court's having obtained jurisdiction. An enlightening discussion of this question is found in Schroeder v. Mer. Mechanic's Ins. Co., 104 Ill. 71, at page 75. The opinion says:

"The court acquires jurisdiction of the plaintiff when he applies for its power and assistance to compel the defendant to render him his rights under the law; but this aid must be sought according to prescribed forms, and under our practice that form requires that he file with the clerk of the court a praecipe for the process he desires. This is an application, in its nature, to the court to send its process to require the defendant to appear at a subsequent term to defend the action. The court clearly has jurisdiction of the plaintiff when he thus invokes its aid. When he thus submits his person to the court, he, by asking its aid, gives the court jurisdiction over the subject matter in controversy, and confers power to adjudicate and determine his rights thus submitted. In this manner the court becomes possessed of jurisdiction of the person of the plaintiff and of the subject matter, and when so possessed it becomes the duty of the court to commence and carry on the power to bring the defendant into the court, that the case may be heard; and the rights of the parties in the matter thus brought before the court may be judicially and conclusively determined."

In 21 C.J.S. Courts, section 82, the following appears:

"Jurisdiction of a particular action is acquired by the filing of pleadings which show the case to be within the general class of cases which the court has jurisdiction to hear and determine, and a petition or complaint which shows this is sufficient to give jurisdiction, although it is defective in other respects."

The court, therefore, obtained jurisdiction of the petitioners and of the subject matter, by the filing and acceptance of the petition. Although the writ of supersedeas was not served on the respondents, nor even issued, they were served with a copy of the order awarding the writ, and directing them to appear and show cause why the prayer of the petition should not be granted. They appeared, without reservation, filed a plea in abatement and an answer; appeared to the taking of the depositions on behalf of the petitioners; filed a stipulation in lieu of evidence on their behalf; argued the case below and here; and, at no time, made claim not to be legally in court. If the notice served was not sufficient process to give the court jurisdiction of the respondents, their unlimited appearances have fully waived the requirement for service of such process.

Whether the instant proceeding be considered original or appellate, the law is the same. In a trial court, service of process is waived by a general appearance. Blue v. Poling,68 W. Va. 547, 70 S.E. 279; Giboney v. Cooper, 57 W. Va. 74,49 S.E. 939; Pennsylvania Railroad Co. v. Rogers, 52 W. Va. 450,44 S.E. 300, 62 L.R.A. 178; Frank v. Zeigler, 46 W. Va. 614,33 S.E. 761; Groves v. County Court, 42 W. Va. 587,26 S.E. 460; Totten v. Nighbert, 41 W. Va. 800,24 S.E. 627; Wandling v. Straw, 25 W. Va. 692. A general appearance in an appellate court likewise makes service of process unnecessary. In a case in this Court, upon appeal, it was held that service of process on the appellee was waived by a general appearance of counsel on his behalf. Dent v. Pickens, 61 W. Va. 488,58 S.E. 1029. We applied the same rule in William F.Mosser Co. v. John Barton Payne, etc., 92 W. Va. 41,114 S.E. 365, here on writ of error, where proper process was, not only not served but, in fact, never issued. No reason appears why the rule applied to appeals and writs of error should not prevail where the review is by supersedeas. Our practice in this regard seems to be that followed generally. 4 C.J.S., page 1088.

For the foregoing reasons, alone, I join with the majority in affirming the action of the Circuit Court of Mingo County in refusing to set aside the levy involved herein.