Charlotton v. Gordon
| Decision Date | 22 November 1938 |
| Docket Number | No. 8800.,8800. |
| Court | West Virginia Supreme Court |
| Parties | CHARLOTTON et al. v. GORDON et al. |
Rehearing Denied Jan. 30, 1939.
Syllabus by the Court.
For the purpose of the prosecution of suits against him an administrator must be considered a resident of the county where he was appointed. That is his official residence regardless of where his home may be located.
Error to Circuit Court, Roane County.
Action of assumpsit by Virgie Charlotton and others against A. T. Gordon, administrator, wherein the defendant filed an interpleader. A judgment was rendered for the plaintiffs, and the United States Fidelity & Guaranty Company appeared specially and moved that the judgment be vacated and that the verdict be set aside. To review the judgment, the United States Fidelity & Guaranty Company brings error.
Judgment reversed, verdict set aside, and case dismissed.
Steptoe & Johnson, Stanley C. Morris, W. F. Wunschel, all of Charleston, for plaintiff in error.
J. Raymond Gordon and H. D. Rollins, both of Charleston, and Harper & Baker, of Spencer, for defendants in error.
MAXWELL, President.
This writ of error brings for review the judgment of the circuit court of Roane County rendered in favor of the plaintiffs in an action of assumpsit wherein there was filed a statutory interpleader.
Virgie Charlotton and eight other persons, plaintiffs, claiming to be the next of kin of Harry T. Winters, deceased, and entitled to have distributed among them the personal estate of the decedent after payment of taxes and costs of administration, instituted this action against A. T. Gordon, administrator of the personal estate of the decedent, to enforce distribution.
Code, 56-10-1, authorizes interpleader in actions at law for the recovery of money. Acting under that statute Gordon, administrator, filed an affidavit and an amended affidavit averring that the amount of money belonging to the Winters estate, then in his control, was $17,971.48; that John Day Winters, Lou Wasenbach, Nell Radekin and Faye Wyckoff, non-res-idents of the State of West Virginia, also were claimants of the Winters estate on the ground that they were his nearest kin; further, that affiant is informed that the State of West Virginia, acting through Clarence W. Meadows, Attorney General, has asserted claim to the estate on the ground of escheat; that United States Fidelity & Guaranty Company is surety on the bond of affiant as administrator and has joint control with him of the funds of the Winters estate. In pursuance of the prayers of the interpleader affidavits, the Attorney General and United States Fidelity & Guaranty Company were summoned to appear in the case and protect their interests; also, an order of publication was executed against the non-resident claimants of the estate.
When the case came on to be heard in the circuit court, none of the parties named in the interpleader affidavits made appearance. Thereupon, a jury was impaneled and sworn "to try the issues and matters of fact arising in this suit." And having heard all the evidence, the jury returned a verdict in favor of the plaintiffs and against the administrator for $17,865.98. Immediately on the return of the verdict, judgment was rendered for the plaintiffs against the administrator for the amount found by the jury. A motion was made by the administrator to vacate the judgment and set aside the verdict.
Subsequently, at the same term of court, United States Fidelity & Guaranty Company appeared specially, and moved in writing that the judgment be vacated and the verdict set aside. In support of this motion it was asserted that the court did not have jurisdiction of the subject matter of the suit or of Gordon, administrator; that the verdict is contrary to the law and the evidence; and that the verdict and judgment are otherwise erroneous and improper for reasons appearing on the face of the record. These motions of Gordon, administrator, and the Fidelity Company were overruled. Writ of error was granted on the petition of the Fidelity Company.
There arises first for consideration the challenge by Charlotton and others, plaintiffs, of the right of the bonding company to seek a writ of error or be heard thereon. The basis of the objection is that the company was not a party to the suit and therefore has nothing at stake; that, although the interpleader stat ute, Code, 56-10-1, provides that a party interpleaded may be permitted "to make himself defendant", the company did not appear before judgment and did not seek to have itself made a defendant. The fact remains, however, that the company was brought into the case under the interpleader and is bound by the results thereof in any particular in, which its interests may be affected thereby. As surety on the administrator's bond, it stands responsible for faithful accounting by him for all administration funds under his control. The surety is therefore vitally concerned that the funds be not paid out by the administrator under an authorization which may not be solidly grounded. The fact that the surety did not appear until after judgment was rendered is not important, because appearance was made at the same term, while the matter was still "within the breast of the court." If, when appearance was thus made by the surety, it specifically called to the court's attention fatal defects in the proceeding, the court should have vacated the judgment and set aside the verdict. We are of opinion, therefore, that the surety not only had a right to make appearance in the trial court and move to annul the proceedings, but, in addition, may prosecute in the appellate court a writ of error bringing under review the entire...
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