Dankmer v. Ice

• Decision Date: 12 December 1939
• Docket Number: (No. 9015)
• Citation: 121 W.Va. 752
• Court: West Virginia Supreme Court
• Parties: Fred Dankmer, an Insane Person, and Mary Dankmer,his Committee v. City Ice & Fuel Company, aCorporation, et al.

121 W.Va. 752

Fred Dankmer, an Insane Person, and Mary Dankmer,

his Committee

v.City Ice & Fuel Company, a

Corporation, et al.

(No. 9015)

Supreme Court of Appeals of West Virginia.

Submitted October 17, 1939.

Decided December 12, 1939.

1. Abatement and Revival

Code, 56-8-5, properly construed, does not warrant the revival of an action at law or suit in equity, in the name of the committee for an insane person as plaintiff therein, upon mo- tion of one or more of the defendants; such revival must be made by scire facias, or by revival in the name of the defendants, or one of them, in the manner prescribed by the statute.

2. Prohibition

A writ of prohibition will not issue to prohibit a court, having jurisdiction of a cause, from passing on the validity of a decree entered in another cause, on the ground of lack of jurisdiction of the court to enter the same, where there is no impediment to the full consideration of the validity of the said decree in the court sought to be prohibited.

3. Judges

Under Code, 51-2-8, the judge of a court of record may not take cognizance of a cause in which, by reason of a personal interest or a fiduciary relationship, he should be made a party.

Prohibition proceeding by Mary Dankmer, committee for Fred Dankmer, an insane person, against the City Ice & Fuel Company and James F. Shipman, Judge of the Circuit Court of Marshall County, to prohibit the defendants from proceeding further in a suit in equity, in which the City Ice & Fuel Company was plaintiff, and Fred Dankmer and others were defendants, and to prohibit the enforcement of a decree in favor of the City Ice & Fuel Company against Mary Dankmer.

Writ awarded in part; denied in part.

McCamic & Clarke, for petitioner. Martin Brown, for respondent.

Fox, President:

The petitioner, Mary Dankmer, committee for Fred Dankmer, an insane person, seeks to prohibit the defendants, City Ice & Fuel Company, a corporation, hereinafter referred to as the Fuel Company, and James F. Shipman, judge of the circuit court of Marshall County, from further proceeding in a suit in equity pending in said court, instituted on the 27th day of June, 1934, in which the said Fuel Company is plaintiff and Fred Dankmer and others defendants, and to prohibit the enforcement of a decree in favor of the Fuel Company against the petitioner herein, rendered on the 12th day of November, 1937, in the suit of Fred Dankmer against the City Ice & Fuel Company, a corporation, lately pending in the same court, which decree is attempted to be enforced in the chancery cause first above mentioned. To reach the questions involved, it becomes necessary to first detail the proceedings in the two equity suits above referred to.

Fred Dankmer was treasurer of the City Ice & Fuel Company and, it is alleged, was short in his accounts. An action in assumpsit was instituted by the Fuel Company at November Rules, 1929, to recover the amount alleged to be due it. On June 10, 1930, Dankmer instituted his suit in equity, the second suit mentioned above, to enjoin said law action, and to have an accounting with the Fuel Company on certain items alleged in his bill. Demurrers to Dankmer's bill and amended bill were sustained. This action of the trial court was reversed (111 W. Va. 676, 163 S. E. 430) and the cause remanded for a hearing upon the merits, and was afterwards referred to a commissioner in chancery. On May 31, 1934, and while the same was pending before the commissioner, counsel for Dankmer suggested upon the record that Dankmer was suffering from dementia, and asked that the proceedings be stayed. Apparently ignoring this request, a report was filed by the commissioner on July 10, 1934, but no action was at that time taken thereon, and the cause drifted until the 11th of February, 1936, when Mary Dankmer, the wife of Fred Dankmer, filed a petition in said cause in which she set up the finding of the mental hygiene commission of Marshall County, adjudging the said Fred Dankmer to be insane and the order of the county court of said county appointing her as his committee. On March 14, 1936, upon notice, the suit was, on motion of the Fuel Company and others, revived by naming Mary Dankmer, committee, as plaintiff, and as defendant in certain answers setting up claims for affirmative relief which had been filed in the cause, all of which was objected to by the committee at the time. Later, on July 3, 1936, the Fuel Company moved that the cause be submitted for decision, which motion was resisted and action thereon deferred. On the 12th day of November, 1937, the motion for final submission was granted and a decree entered in favor of the Fuel Company and against Mary Dankmer, committee, for the sum of $3932.51. On August 3, 1938, Mary Dankmer, as committee, filed a bill of review in said cause which, upon demurrer, was dismissed on February 14, 1939, from which action this court denied an appeal on the ground that the bill of review had not been filed within eight months from the date of the final decree in the cause. The petitioner herein asserts that the decree of November 12, 1937, is void for lack of jurisdiction on the part of the circuit court of Marshall County to take any action whatever in the cause in which the same was entered, subsequent to the date when the insanity of Fred Dankmer was suggested on the record; and particularly because the attempted revival of said suit by motion, instead of by scire facias, did not restore to said court the jurisdiction to hear said cause, which had been lost by the showing of an adjudication of the insanity of Fred Dankmer; and that after the expiration of two terms of court, as provided in Code, 56-8-8, the cause was discontinued, no good cause having been shown to the contrary.

The Fuel Company is now attempting to enforce the said decree in its separate suit against Fred Dankmer and others, instituted at August Rules, 1934, the general purpose of which was to set aside an alleged voluntary conveyance made by Fred Dankmer and Mary Dankmer, his wife, to Louisa Dankmer. In this suit, on October 1, 1934, Mary Dankmer, by special appearance, suggested the mental incapacity of her husband, and on March.14, 1936, she, as committee for her husband, was, on motion of the plaintiff, made a party defendant, and a guardian ad litem was appointed for the incompetent. In the original bill it was averred that the property which had been conveyed to Louisa Dankmer was on the 25th of June, 1928, con- veyed to James F. Shipman, trustee, to secure the payment of certain indebtedness to the City and County Bank, and alleging the discharge of the said indebtedness and the execution of a release of the deed of trust securing the same, which release, it was alleged, was withheld from record by Fred Dankmer. A demurrer to this bill was sustained in July, 1938, on account of the absence of certain necessary parties, and the question as to the suggested disqualification of Shipman, then and now judge of the circuit court of Marshall County, and the same person as the trustee aforesaid, to hear the cause, was left to abide the further progress of the suit. An amended bill was filed, and while the trust deed to Shipman, trustee, was ignored therein, its existence was afterwards admitted on the record, as alleged in the original bill. The demurrer to the amended bill was overruled and further action taken in the cause, Shipman presiding, and the defendants ordered to prepare the case for final submission on October 21, 1939. On September 18, 1939, the rule herein was awarded.

It appears that Mary Dankmer, committee, objected to the consideration of certain testimony in the cause in which the decree against her was entered, on the ground that the same was inadmissible under Code, 57-3-1. It is not clear to us that the persons who testified against Dankmer and in favor of the Fuel Company were disqualified by any interest in the result of the suit which would bar their testimony. We have held that a person, not interested in the result of a suit, may testify as to statements made by a deceased officer of a corporation (Keatley, Admr. v. Hanna Chevrolet Co., et al., recently decided and not yet reported [121 W. Va. 669, 6 S. E. 2d 1.] But even if we were to concede doubt on this point, we do not think it such an error as can be corrected by prohibition. Cases may often be decided upon incompetent testimony, but we have not been pointed to any authority that authorizes a court by prohibition to prevent the enforcement of judgments and decrees so procured. We think, therefore, that this contention of the petitioner is without merit.

The remaining questions are, first, whether or not the revival of the chancery cause of Dankmer against Fuel Company, upon motion of defendants, operated to vest in the circuit court of Marshall County jurisdiction to further proceed in the cause; second, if jurisdiction was lacking, may the enforcement of the alleged void judgment in another suit be prevented by prohibition; and, third, whether or not, upon showing made, as to his alleged disqualification, the regular judge of the circuit court of Marshall County should be prohibited from, further taking cognizance of the cause of the Fuel Company against Dankmer.

The answer to the first question depends on the construction of Code, 56-8-5, which provides that in any stage of any case the same may be revived by scire facias, as against parties necessary to the further prosecution thereof, and then makes the following provision:

"Or where the party dying, or whose powers cease, or such insane person or convict, is plaintiff or appellant, the person or persons for whom such

scire facias might be sued out may, without notice or scire facias, move that the suit proceed in his or their name. Likewise, the person or persons against whom the scire facias might be sued out by the plaintiff may also, without notice or scire facias, move that the suit or action proceed in his or their name....