Hastings v. Finney
| Decision Date | 19 October 1937 |
| Docket Number | 8606. |
| Parties | HASTINGS v. FINNEY, Justice of the Peace, et al. |
| Court | West Virginia Supreme Court |
Submitted September 22, 1937.
Syllabus by the Court.
1. The action of this court, in refusing to docket for review a case certified under Code, 58-5-2, is not to be construed as a final adjudication of the questions presented on the certification, or as limiting the court in its decision upon the record presented on final hearing.
2. In an action before a justice of the peace, if, after its institution and before trial, the sole defendant dies, the action abates, and the lien of an attachment issued therein and levied before the death of such defendant is discharged. In such case, the justice is without jurisdiction to further proceed in the case.
3. Prohibition will lie to prevent action by a court in a case in which it does not have jurisdiction, and may be invoked by any person whose rights may be injuriously affected by the action he seeks to prevent.
Error to Circuit Court, Kanawha County.
Prohibition proceeding by Eloise V. Hastings against G. J. Finney Justice of the Peace, Omer Skeens, and another. To review an adverse judgment, the last-named defendant brings error.
Affirmed.
W. H Pettry and J. Howard Hundley, both of Charleston, for plaintiff in error.
Charles F. Gore, of Charleston, for defendants in error.
The decision in this case depends upon whether or not an action instituted before a justice of the peace, in which an attachment has been issued and levied, abates by the death of the sole defendant before judgment, and carries with it a discharge of the attachment lien.
Omer Skeens instituted a suit against Basil Jones before G. J Finney, justice of the peace of Kanawha county, and on July 14, 1936, sued out an attachment therein which was levied on certain lumber claimed to be the property of the defendant. Before the principal action was tried, defendant died, and J Wilmer Long was appointed administrator of his estate. Subsequent to the appointment of the administrator, the record discloses, the action before the justice was revived against the administrator, judgment was entered on plaintiff's claim, and the lumber levied on was ordered to be sold under said attachment. The record does not show the proceedings in the original suit, nor the procedure as to its revival. The petition and answer to disclose that a judgment was rendered against Jones' administrator on September 9, 1936. In the meantime, on July 15, 1936, Eloise V. Hastings, petitioner herein, filed for record in the office of the clerk of the county court of Kanawha county a bill of sale dated the 1st day of July, 1936, and purporting to sell some, if not all, of the lumber covered by the levy of the attachment. When the order of sale aforesaid was entered, Eloise V. Hastings applied to the circuit court of Kanawha county for a writ of prohibition against G. J. Finney, justice of the peace, C. E. Grishaber, constable, and Omer Skeens, and in her petition alleged that the justice was without jurisdiction to enter the judgment and order of sale under the attachment; contending that the death of Jones operated to deprive the court of further jurisdiction in the case, and a rule in prohibition issued. Skeens' demurrer to this petition was overruled, and the points in question were certified under the provisions of Code, 58-5-2. This court refused to docket the case, whereupon, the case being returned to the circuit court, all of the defendants to said petition filed their answer, to which answer the petitioner demurred and also filed her replication. The demurrer to the answer was sustained and the peremptory writ issued. To this action of the court, Omer Skeens prosecutes this writ of error.
In the court below, the opinion was expressed in the final order that the only question to be determined was the jurisdiction of the justice of the peace to hear the case after the death of Jones, which question, it was stated, had been adjudicated by this court. The only basis for this statement is the fact that this court refused to docket the case when it was certified after the demurrer to the original petition had been overruled. The action of this court in refusing to docket the certified case is not to be held as a final determination of the question involved. In Sweeney v. Trust Co., 116 W.Va. 344, 180 S.E. 897, 901, it was held that the action of this court in refusing to docket for hearing a case certified to it under the statute above cited should not be construed as having the binding effect of a final adjudication, and it was stated in the body of the opinion that: "If, as in the case at bar, upon later review of the whole record, upon full argument, we reach the conclusion that there was initial error in the proceedings in the trial court, the ends of justice require that we have authority to say so, and that our action on preliminary examination of the question of pleading be not held to preclude such later reexamination." The refusal to docket this case for hearing on pleadings should not have limited the circuit court in passing upon the principal question involved, but inasmuch as the case now comes on for final hearing, it becomes our duty to determine that question.
We have not been able to find any authority for the proposition that in a suit...
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