Ewing et al. v. Winters et al.

• Decision Date: 17 November 1894
• Citation: 39 W.Va. 489
• Court: West Virginia Supreme Court
• Parties: Ewing et al. v. Winters et al.

39 W.Va. 489

Ewing et al.

v.Winters et al.

Supreme Court of Appeals of West Virginia.

Submitted June 8, 1894.

Decided November 17, 1894.

Jurisdiction Supreme Court of Appeals.

An infant, after lie has attained the age of twenty one years, files his petition asking to be permitted to show cause in this Court against a decree under section 7 of c. 132 of the Code. Held, that this Court has no original jurisdiction in such case, and his application is refused.

W. W. Arn ett for petitioner.

Caldwell & Caldwell, J. B. Sommerville and I. F. Jones for opponents.

Holt, Judge:

This is an appeal which came to this Court from a decree of the Circuit Court of Marshall county rendered on the 30th day of March, 1889. The cause was argued and submitted on.Juno 0, 1890, and decided June 21, 1890. See case of Emng v. Winters, 34 W. Va 23 (11 S. E. Rep. 718) and record therein. The two decrees of the Circuit Court one of April 5, 1888, and one of June 23, 1888 were reversed and annulled, and the final decree of December 31, 1888, was likewise reversed, except so much thereof as confirmed the report of sale of the land, and directed a deed and possession and costs, and the cause was remanded to the Circuit Court for further proceedings. On the 16th day of April, 1894, James Winters filed his petition in this Court alleging, that within the last five months preceding that day he became twenty-one years of age, and that he and his brothers and sisters, who are still infants, were parties defendant in said two causes, and are the ones whoby this Court were adjudged to take a remainder in fee in the real estate called the " Old Homestead " under the will of James Winters. He complains on various grounds of the sale of his estate in the remainder and of the substitution of the proceeds of sale in the place of such estate, and prays that under section 7, c. 132 of the Code he may be permitted to show cause against such decree.

In Jackson v. Turner (1834) 5 Leigh, 119, it was held error to subject lands of infants to sale in certain cases and not give them a day to show cause against the decree after their attainment to full age. To obviate such error section 7 was passod in the revisal of 1849, which reserves the right to the infant in a proper case within six months after attaining the age of twenty one years, to show such cause against the decree without such right being reserved. In such eases the infant may proceed by original bill, bill of review or petition to rehear...