Town of Summersville Ex Rel. McCue v. Cooper , 124 W. Va. 417 ( 1942 )

I believe the interpleader proceeding should be dismissed for lack of jurisdiction, for reasons hereinafter set forth.

I cannot say that a suggestion and summons on a judgment is an action and that a suggestee is a defendant within the meaning of Code, 56-10-1. That statute provides a cumulative remedy, allowing interpleader in an action at law, and also prescribes the procedure for enforcement thereof. Pardee Curtin Lumber Co. v. Odell, 78 W. Va. 159, 88 S.E. 419. As to construction of statutes of this kind, see: Lewis' Sutherland Statutory Construction, Section 572; Sedgwick on Statutory and Constitutional Law, Second Edition, page 343.

The remedy thus given is available to a defendant " * * * in an action * * * which he does not wish to defend * * *." Cooper and the National Surety Company do not come within the purview of that statutory remedy. It is true that they were defendants in the action brought by the Town of Summersville for the use of McCue, but that action was defended by them with an unfavorable result. It had ended, leaving nothing to be done except to pay the judgment or apply for a review to this Court, and they chose to pay which ended the action.

The suggestion and summons were made and issued September 3, 1940, in the action of Craig v. McCue, in which action judgment was rendered for Craig in the year 1934. After rendition of the judgment, there was no longer an action. Wait's Actions and Defenses, Vol. 1, page 10.

A suggestion and process issued thereon under Code, 38-5-10, is an ancillary statutory proceeding in aid of collection of judgments. Emmons Hawkins Hardware Co. v. Sizemore, 106 W. Va. 259,145 S.E. 438. See also Exchange Bank v. Beatty, 107 W. Va. 129,147 S.E. 475, and Park v. McCauley, 67 W. Va. 104,67 S.E. 174, 28 L.R.A. (N.S.) 1036, 21 Ann. Cas. 199.

It requires a strained construction to say that a suggestion and process in aid of an execution constitute an action and that the suggestees are defendants therein who do not "wish to defend." I do not believe such construction is warranted by the phraseology of the statute, nor authorized by any approved rules of statutory construction.

Cooper and the National Surety Company were not defendants in an action by reason of the suggestion made and process served on them; therefore, an affidavit of interpleader could not be filed by them or their attorney under provisions of Code,56-10-1, and the filing of such affidavit in this case gave the court no jurisdiction of the interpleader proceeding. Hence, the holding stated in the third point of the syllabus, in my view, is erroneous.

The other points of decision in the majority opinion state correct principles of law, in my opinion, but I do not think these points arise since there was no jurisdiction in the trial court to hear the interpleader proceeding, and hence these points are not reached for decision. The proceeding based on the affidavit of interpleader filed by Cooper and the Surety Company should be dismissed.