In Re Estate Of Edwin A. Durham

• Decision Date: 08 June 1937
• Docket Number: (No. 8447)
• Citation: 119 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: In Re Estate of Edwin A. Durham, Deceased.

119 W.Va. 1

In Re Estate of Edwin A. Durham, Deceased.

(No. 8447)

Supreme Court of Appeals of West Virginia.

Submitted April 20, 1937.

Decided June 8, 1937.

Courts

Upon writ of error from a circuit court to the judgment of a county court provided for by Code 44-2-19 and Code 58-3-1 according to the method prescribed in Code 58-3-4, the record must be authenticated by the certificate of the clerk of the county court showing that such record includes all of the matter upon which the county court acted in deciding the questions presented for review., or that it includes all of the papers in the case that were before the county court. Otherwise it is not error in such a proceeding to dismiss a writ of error which has been awarded by the circuit court on the ground the record required by Code 58-3-4 did not accompany the petition for a writ of error as required by that section.

Error to Circuit Court, Tyler County.

Proceeding in the matter of the estate of Edwin A. Durham, deceased, on the claim of W. H. Fitzgerald. To review a judgment of the circuit court dismissing a writ of error brought to review a judgment of the county court affirming a report disallowing the claim, claimant brings error.

Affirmed.

J. Han ford McCoy, Henry P. Snyder and Ritchie, Hill & Thomas, for plaintiff in error.

I. M. Underwood and Hoffheimer & Stotler, for defendant in error.

Kenna, President:

This writ of error involves a settlement of the estate of Edwin A. Durham. There seem to have been several references in the County Court of Tyler County to commissioners of accounts, the detailed recital of which would serve only to complicate the statement of the question for decision. On April 24, 1935, 0. B. Conaway, the last commissioner of accounts to whom the settlement of the estate was referred, filed his report in the County Court of Tyler County. This report disallowed the claim of W. H. Fitzgerald, the plaintiff in error here. On June 4, 1935, the County Court of Tyler County affirmed the report of 0. B. Conaway, commissioner of accounts, after a hearing of Fitzgerald's exceptions to that report. On July 16, 1935, a writ of error was allowed by the Circuit Court of Tyler County and on December 5, 1935, that writ of error was dismissed on the ground that there was no certification of the record made up in the County Court of Tyler County upon the writ of error to the Circuit Court of that county. To the latter order, W. H. Fitzgerald prosecutes the present writ of error. It is necessary to consider only the assignment of error involving the dismissal of the writ of error in the circuit court.

There is no question presented in this case concerning the time within which the petition for a writ of error was filed in the circuit court, nor is there any question in this case concerning the time within which the papers relied upon by the plaintiff in error as constituting the record in the county court were presented in the circuit court. The petition for the writ of error, accompanied by the papers claimed to constitute the record in the county court, was presented in the circuit court within four months from the time of the entry of the final order in the county court. This purports to be the whole record. Therefore, the question presented here is simply whether the papers filed with the petition for the writ of error in the circuit court were authenticated in such manner as that they may now be regarded as in fact constituting the complete record made in the county court. If they may be so regarded, then the order of the circuit court dismissing the writ of error there must be reversed. On the other hand, if the papers filed with the petition for the writ of error in the circuit court were not authenticated in such manner as that they could be taken in fact as constituting the entire record made in the county court, then the order of the circuit court dismissing the writ of error in that court must be affirmed.

We have already held in the case of Miller V. Miller, 117 W. Va. 138, 184 S. E. 246, that Code, 58-3-4, 58-3-1 and 44-2-19, are to be read together for the purposes of determining the method of "appeal" in cases of this kind. Those sections quite clearly indicate that the procedure is on the law side of the court, and this court has more than once declared that the review of the final order of the county court under Code 44-2-19 is by writ of error. The plaintiff in error upon this review depends upon a certified copy of an order entered in the County Court of Tyler County on June 4, 1935, as being sufficient to identify all of the papers that made up the record in the county court, and also sufficient to authenticate the record in the county court for the purposes of the writ of error to the circuit court. This order is drawn in the form of an order in chancery and simply recites that the cause came on to be heard upon the will of Edwin A. Durham, duly probated, and the record of probate; the inventory and appraisement of the estate; the settlement of the personal representatives; the reports of the successive commissioners...