Karnes v. Johnston.

• Decision Date: 16 January 1906
• Citation: 58 W.Va. 595
• Parties: Karnes v. Johnston.
• Court: West Virginia Supreme Court

58 W.Va. 595

Karnes

v.Johnston.

Supreme Court of Appeals of West Virginia.

Submitted September 25, 1905,

Decided January 16, 1906.

1. Committee Foe, Insane Notice.

The appointment by a county court of a committee for a person as insane, upon a finding by a justice that such person is insane under an inquisition under section 9, chapter 58, Code, without notice to such >erson is void. (p. 596)

2. Insane Person Committee.

A justice's order finding that a person is insane, not committing him to a hospital for the insane, but leaving him freedom of person until the appointment of a committee, and then committing him to the custody of such committee, is not admissible as evidence of insanity in a proceeding to appoint a committee, (p. 598.)

3. Unlawful Entry and Detainer Entry.

The plaintiff, in an action of unlawful entry and detainer appealed to the circuit court from a justice's court, must show that the defendant's entry was within two years before.the action. The record must show that fact to sustain a judgment for the plaintiff, (p. 599.)

Error to Circuit Court, Mercer County.

Action by Robert O. Karnes against James H. Johnston. Judgment for plaintiff and defendant brings error.

Reversed andt Dismissed.

Hale &. Pendleton, for plaintiff in error. C. R, McNutt, for defendant in error. Brannox; Judge:

Robert O. Karnes as committee for Huldah Alvis, lunatic, brought an action of unlawful entry and detainer against James H. Johnston before a justice of Mercer county to recover possession of land, which went by appeal to the circuit court, where the case was tried by the judge in lieu of a jury, and judgment rendered for the plaintiff. Upon the trial the plaintiff gave in evidence against the objection of the defendant an order made by the county court reciting that a justice of the peace appeared in open court and made known to the county court on oath that Huldah Alvis was, in the mode prescribed by law, found by him to be a lunatic, and was so adjudged by said justice, and that the custody of her person had been by said justice directed to be turned over to her committee, when one should be appointed, and appointing Karnes a committee for her. No notice of this proceeding in the county court was given to Huldah Alvis. This Court has decided that the appointment of a committee for an insane person by the county court or its clerk without notice is void. South Penn Oil Co. v. Mclntire, 44 W. Va 296. But it is said that the doctrine is only applicable under section 34 of Code, chapter 58, where a person is suspected of being a lunatic, and where it is sought to appoint a committee for him, and to adjudge him for the first time on same motion to be insane, and that section 33 does not require a notice where he has been found insane by a justice upon an inquisition under Code, chapter 58, section 9. The Mclntire case and others in this Court were not cases where the person had been found by a justice to be insane, as in this case. The question then arises, Is notice of the appointment of a committee for a person as insane required where he has been found by a justice to be insane upon such inquisition? It is argued that as section 33 authorizes a county court to appoint when a justice has found one insane, without providing for notice, and as section 34 provides that a county court may appoint when one is suspected of being insane, and in words requires notice, therefore no notice is required in this case, because the justice has found the person to be insane. If we give section 33 effect to warrant such appointment without notice, it would be unconstitutional, because it would deprive a person, without due process of law, of the clearest rights, personal freedom, which is "liberty," and the possession, perhaps during life, of his property. We should not give section 33 a construction rendering it unconstitutional; but we should adopt such a process under it as would not render it obnoxious to the constitution. In some instances a statute will be, or will not be, unconstitutional, dependant on a procedure under it, An instance is King v. Mullins, l7l U. S. 404, where it was held that the fact that legal proceedings are given under the process to enforce forfeiture of land for non-entry, for taxes avoided the imputation of unconstitutionality against the forfeiture clause of our constitution. There is section 33 giving power, so far as its dry letter goes, to appoint a committee merely, upon a justice's finding lunacy; but there is also the constitutional demand that no one shall be deprived of liberty or property without due process. The judiciary, in the practical application of section 33, must call for a procedure demanded by the constitution. As we said in Evans v. Johnson, 39 W. Va, p. 303: "A statute will not be construed to authorize proceedings affecting a man's person or property without notice. It does not dispense with notice." Notice is presumed to have been intended by the legislature, unless in words denied. If such finding by a justice were conclusive upon the insane person, then notice would seem to be useless. It is effectual to commit him to a hospital for insane. But the question is, How far is such finding of a justice operative in a collateral proceeding, a distinct proceeding, namely, a proceeding for the appointment of a committee? In such collateral proceeding it is not conclusive, but only an item of evidence, prima facie evidence of the fact of insanity. 16 Am. & Eng. Ency. L. (2d Ed.) 606. It would be going far to say that the finding of a justice upon an inquisition of lunacy under section 9, chapter 58, Code, which...