Fahey v. Brennan

• Decision Date: 08 April 1952
• Docket Number: 10466,Nos. 10465,s. 10465
• Citation: 137 W.Va. 37,70 S.E.2d 438
• Parties: FAHEY, v. BRENNAN (two cases).
• Court: West Virginia Supreme Court

Page 438

70 S.E.2d 438

137 W.Va. 37

FAHEY, v. BRENNAN (two cases).

Nos. 10465, 10466.

Supreme Court of Appeals of West Virginia.

Submitted March 4, 1952.

Decided March 8, 1952.

Opinion Filed April 8, 1952.

Syllabus by the Court.

1. Under Section 6 of Chapter 26, Acts of the Legislature, Regular Session, 1933, the court or judge in a proceeding in prohibition may permit amendments as in other cases.

2. Great liberality should be exercised in permitting amendments to the pleadings in a proceeding in prohibition; and although there is wide discretion in a court in relation to such amendments, such amendments may not change the cause of action.

3. In an original proceeding in prohibition this Court will permit an amendment of an original petition, praying for a writ of prohibition, by the filing of an amended and supplemental petition, the allegations of which are germane to the cause of action in the original petition and do not interject into the proceeding a new cause of action.

4. A demurrer to a petition in prohibition serves to admit the truth of the well pleaded allegations thereof.

5. 'The writ of prohibition lies to restrain a judge from proceeding in a cause in which he is disqualified by reason of interest in the subject matter thereof, although the court over which he presides has jurisdiction of the cause.' Forest Coal Co. v. Doolittle, Pt. 1 Syl., 54 W.Va. 210,

6. Where, in an original proceeding in prohibition, the undenied allegations of the petition filed by the petitioner show that the judge sought to be prohibited is being motivated by interest or by prejudice and bias against the petitioner, this Court will issue a writ of prohibition.

7. In this jurisdiction the propriety of a trial court's action in consolidating or refusing to consolidate cases rests in the discretion of the court, and an order of a trial court, either consolidating cases or refusing to consolidate them, will not, in the absence of an abuse of such discretion, be disturbed by this Court in an original proceeding in prohibition.

Wm. Bruce Hoff, Parkersburg, for relators.

Chas. M. Love, Charleston, Tom B. Foulk, A. E. Bryant, Wheeling, for respondent.

RILEY, President.

On February 2, 1952, the petitioners, William T. Fahey and Martin F. Fahey, filed their original separate petitions in prohibition against J. H. Brennan, Judge of the Circuit Court of Hancock County, praying that the defendant Judge be declared disqualified by reason of hostility toward the petitioners and interest and partisanship, and that he be prohibited from proceeding further in relation to a proceeding pending in the Circuit Court of Hancock County, instituted by rule and summons by the defendant Judge, which involved the suspension of the petitioners' licenses to practice law.

On the same day, February 2, 1952, this Court granted a rule in each proceeding in prohibition against the defendant Judge, returnable on Tuesday, March 4, 1952. On the return day the petitioners offered for filing their amended and supplemental petitions, which petitions were filed over defendant's objection; and at the same time the defendant filed in each proceeding demurrers to the original petitions and to the amended and supplemental petitions.

Both cases having been heard on the return day of the rules on the oral arguments and briefs of counsel for both parties, this Court on Saturday, March 8, 1952, ordered in each case that a writ of prohibition issue, directed against the defendant Judge, prohibiting him from sitting on, hearing and deciding the malpractice proceedings pending in the Circuit Court of Hancock County, in relation to the rule, summons and charges filed against the petitioners. This order provides that, as Case No. 10465 of State ex rel. William T. Fahey and Case No. 10466 of State ex rel. Martin F. Fahey, against J. H. Brennan, the defendant Judge, by agreement of counsel in open court and with the consent of the Court, had been argued and briefed as though the two cases had been consolidated, a single opinion would be filed at a later date setting forth the reasons which prompted the entry of the orders awarding the writs of prohibition in both cases.

These Cases Nos. 10465 and 10466 involve the same malpractice proceedings in the Circuit Court of Hancock County which were involved in the earlier cases of Martin F. Fahey v. J. H. Brennan, Judge of the Circuit Court of Hancock County, West Virginia, Case No. 10412, and of State ex rel. William T. Fahey, v. Brennan, Judge of the Circuit Court of Hancock County, Case No. 10413, W.Va., 68 S.E.2d 1, (therein styled Fahey v. Brennan, Judge, [two cases], No. 10412 and No. 10413), in which it was held that the Circuit Court of Hancock County had jurisdiction of both the proceedings against the petitioners herein. The holding in the earlier cases to that effect is the law of the cases. In each of the orders entered on March 8, 1952, in the instant proceedings in prohibition, it was ordered that each of the malpractice proceedings is, and will, remain on the docket of the Circuit Court of Hancock County until dismissed or finally decided; but that in view of the defendant's disqualification to sit on and hear the same, he should either invite a Judge of his own selection from another Circuit to sit and hear the malpractice proceedings, or another Judge should be selected by the members of the Hancock County Bar, as provided by statute.

The instant proceedings in prohibition are concomitant in every sense of the word; each proceeding is based upon a pending malpractice proceeding, in whiich the charges against each petitioner are substantially the same, and the allegations of the original and of the amended and supplemental petitions in both cases in prohibition are in essential details identical.

The instant proceedings, Cases Nos. 10465 and 10466, present three basic and controlling questions: (1) Were there proper amendments to the original petitions by the filing of the amended and supplemental petition in each case; (2) do the original and amended and supplemental petitions, on the demurrers to the four petitions establish a prima facie case, which justified this Court in entering the orders of March 8, 1952, awarding the writ of prohibition prayed for in each case; and (3) are the proceedings, as contended by the defendant, moot?

On the return day of the rules, March 4, 1952, the cases were argued and submitted for decision, and the Court permitted the amended and supplemental petitions in both cases to be filed over defendant's objection. By the order of March 4, 1952, the cases were submitted for decision on the original and the amended and supplemental petitions, the respective demurrers thereto, and the arguments and briefs of counsel.

At the time the order of March 8, 1952, was entered the Court was, and is now, of opinion that the allegations of the amended and supplemental petitions in both proceedings in prohibition are germane to the cases presented in the original petitions.

The original and the amended and supplemental petitions in each case allege that by reason of the defendant Judge's prejudice, hatred and partisanship, he was influenced improperly, and will continue to be so influenced, against the petitioner in each case; and that by reason of such improper influence the defendant was motivated in denying a request of petitioners' counsel, contained in his letter of January 27, 1952, for a continuance of the malpractice proceedings, which it is alleged the defendant Judge set for hearing on February 4, 1952, knowing that petitioners' sole counsel was engaged in another court in important litigation; and thereby the defendant sought to cause the petitioners to waive their special appearance, and thus lose the benefit of dilatory pleas, which, it is alleged, petitioners' counsel intends to file and rely upon, or resort to the instant proceedings in prohibition.

From the original and amended and supplemental petitions in both cases in prohibition it apears that the malpractice charges against the petitioners were based on allegations contained in the malpractice proceedings pending in the Circuit Court of Hancock County, and that the petitioners induced Russell Dennis Hurst, Virginia Grace Sponaugle, Mary Ellen Bradley and Roy Morgan to testify falsely in a criminal prosecution against Russell Dennis Hurst in the Circuit Court of Hancock County for the alleged wrongful death of a child, in which proceeding the defendant therein was represented by the petitioners, resulting in a verdict for the defendant Hurst. Both of the original petitions in the instant proceedings in prohibition allege that 'the petitioner is apprehensive that attempts have been, and are being, made to coerce, intimidate and induce Russell Dennis Hurst, Virginia Grace Sponaugle, Mary Ellen Bradley, and Roy Morgan to make statements regarding their testimony differing from the testimony which they had previously given under oath and differing from the recital of facts as told to your petitioner and others.' The amended and supplemental petitions in each of the prohibition proceedings allege, 'that, during the pendency of the Rule awarded herein on February 2, 1952, the defendant, acting personally and by and through the agency of others, has sought to misuse the power and authority of his high office to secure from one or more of the persons, whose testimony petitioner is alleged to have adduced knowing the same to be false, statements and testimony differing from their previous statements to the petitioner and others and their previous testimony under oath, for the purpose of using such changed statements and such charged testimony against the petitioner, by offers of extreme leniency of punishment to be imposed and commutation of sentences already imposed.'

The original petition in each of the proceedings in prohibition contains the allegation that 'The defendant will try the petitioner al...