Hensley v. Copley
| Decision Date | 19 November 1940 |
| Docket Number | 8996. |
| Citation | 11 S.E.2d 755,122 W.Va. 621 |
| Parties | HENSLEY v. COPLEY et al. |
| Court | West Virginia Supreme Court |
F. F Scaggs, of Wayne, for plaintiff in error.
W. Earl Burgess, of Wayne, for defendant in error Margaret Hensley.
RILEY President.
In this notice of motion proceeding, instituted in the Circuit Court of Wayne County, in which Margaret Hensley was plaintiff and S. M. Copley and Chris Copley were original defendants, S. M Copley prosecutes error to a judgment rendered against the original defendants and one Florence Copley, and to a judgment (erroneously designated a decree) refusing to reverse the former judgment upon the petition of said original defendants filed in said circuit court.
On December 12, 1933, Florence Copley, administratrix of the estate of Allen Taylor Hensley, deceased, gave bond as such administratrix in the County Court of Wayne County in accordance with Code, 6-2-2, with the defendants, S. M. Copley and Chris Copley, as sureties thereon, payable to the State of West Virginia, and conditioned upon the faithful performance of her duties as administratrix. Prior to the institution of this proceeding, plaintiff, Margaret Hensley, a claimant to decedent's estate, had obtained a judgment in the circuit court against the administratrix, in the amount of $360.00 with interest and costs. In the notice of motion liability is asserted against the administratrix and sureties on the basis of the judgment and a claimed liability on the bond.
To the notice of motion plaintiff in error filed a purported plea in abatement, which, because it directs attention only to matters appearing on the face of the notice, should and will be regarded as a demurrer. None of the grounds asserted therein directs attention to the fact that this proceeding was instituted by plaintiff in her individual capacity and not in the name of the State of West Virginia notwithstanding the bond is payable to the State. We cannot, however, overlook the fatal impropriety of this proceeding. The question raised is entirely jurisdictional. Code, 6-2-2, provides: "Every official bond, and every bond required by law to be taken or approved by, or given before, any court, board or officer, shall, unless otherwise provided, be made payable to the State of West Virginia, and shall be signed by one or more sureties deemed sufficient by such court, board or officer, and be proved or acknowledged before, or approved by, such court, board or officer." Surely the bond of an administrator, which, under Code, 44-1-6, must be given in the county court of the county in which he qualifies, is one embraced within the provisions of the statute. Code, 6-2-2. Code, 6-2-17, provides that suits "may" be prosecuted from time to time upon any bond payable to the State of West Virginia in the name of the State, for the benefit of the State, and of any county, district, corporation, or person injured by a breach of the condition of such bond, until damages are recovered in an aggregate equal to the penalty thereof. Notwithstanding the use of the word "may", the latter section of the Code is mandatory as applied to the enforcement in courts of law of bonds payable to the State. In Moore v. Henry, 76 W.Va. 271, 85 S.E. 527, it was held that recovery in an action at law can be had on a special commissioner's bond only in the name of the State of West Virginia, for the use and benefit of ...
To continue reading
Request your trial