Kinsey v. Kinsey

• Decision Date: 20 May 1958
• Docket Number: No. 10938,10938
• Citation: 103 S.E.2d 409,143 W.Va. 574
• Court: West Virginia Supreme Court
• Parties: Mary KINSEY v. Joe A. KINSEY.

Page 409

103 S.E.2d 409

143 W.Va. 574

Mary KINSEY v. Joe A. KINSEY.

No. 10938.

Supreme Court of Appeals of West Virginia.

Submitted April 29, 1958.

Decided May 20, 1958.

Syllabus by the Court

1. Inasmuch as Code, 58-4-17, contains no specific limitation upon the time in which a petition for an appeal or writ of error, from an order of a Circuit Court affirming or reversing an order, judgment or decree of a court of record of limited jurisdiction, must be filed in this Court, such petition for appeal or writ of error is governed by Code, 58-5-4, the general statute relating to the time in which a petition for appeal or writ of error must be filed in this Court from an order, judgment or decree of a Circuit Court, the time limit therein being eight months.

2. Syllabus Point 4, State ex rel. Crouser v. Mercer, 141 W.Va. 691, 92 S.E.2d 745, is overruled in so far as it purports to limit the time in which an appeal or writ of error may be sought from an order of a Circuit Court affirming or reversing a judgment, order or decree of a court of record of limited jurisdiction, to four months.

3. An award of personal property to one of the parties to a suit for divorce must be supported by allegations of fact in the pleadings laying a basis therefor, and a prayer for general relief, standing alone, is insufficient to support such an award.

Tom T. Baker, Huntington, for appellant.

Leonard A. Shawkey, Huntington, for appellee.

BROWNING, Judge.

Mary Kinsey brought this suit for divorce in the Domestic Relations Court of Cabell County alleging physical and mental cruelty on the part of the defendant, Joe A. Kinsey, and praying for: A decree of divorce; temporary and permanent alimony; temporary and permanent custody and control of the two infant children; temporary and permanent support and maintenance for the infant children; an order requiring defendant to vacate the family residence; temporary and permanent use of the furniture, household items and automobile; court costs and counsel fees; and for general relief.

The preponderance of the evidence establishes the charge of cruelty and shows that plaintiff, from part time labor had accumulated some savings, and had some income, with which she paid the major portion of the purchase price of the automobile, and, though the original household furnishings had been purchased by defendant, nearly all of those furnishings had been traded in and replaced with new furnishings on which the plaintiff made the payments from her own funds.

The Domestic Relations Court of Cabell County entered a decree on July 11, 1956, granting the plaintiff a divorce and awarded her: The custody of the children; $20 weekly for the support and maintenance of the children and $15 weekly as alimony; the household furnishings and automobile as her sole property and required the defendant to assign the title to the automobile; and, the exclusive use of the family residence, defendant to 'assume and pay that certain indebtedness evidenced by a Promissory Note and secured by a Deed of Trust * * * in the amount of thirty-six dollars ($36.00) each and every month until the indebtedness is fully paid.'

Defendant, on October 5, 1956, filed his petition in the Circuit Court of Cabell County for an appeal from the decree of July 11, 1956, which appeal was granted on December 14, 1956. After argument and briefs by counsel, the Circuit Court, on April 12, 1957, entered judgment, affirming the decree of July 11, 1956, and remanded the cause to the Domestic Relations Court. Thereafter, the defendant filed his petition in this Court on September 6, 1957, for an appeal from the judgment of the Circuit Court of Cabell County of April 12, 1957, which appeal was granted by this Court on November 25, 1957.

Errors assigned in this Court deal solely with the disposition of property in the decree of July 11, 1956, and the action of the Circuit Court in affirming such decree. However, a preliminary question as to the jurisdiction of this Court to consider this appeal under the provisions of Chapter 58, Article 4, of the Code, has been raised, and has been ably presented by counsel in briefs and oral argument.

It will be noted that the petition for an appeal from the judgment of the Circuit Court of Cabell County was not filed in this Court until four months and twenty-five days had elapsed after the entry of such judgment. Article 4, Chapter 58, or the Code, was inserted in the Code of 1931 by the Revision and Codification Committee for the express purpose of co-ordinating all prior legislation relating to appellate procedure from inferior courts to the circuit court. It superseded in particular the provisions of Section 8, Chapter 114-a, of the Code of 1923. The special acts creating courts of limited jurisdiction have generally provided that the appellate procedure on appeals from such courts should be governed by the law and rules relating to appeals from circuit courts to this Court. However, by Chapter 109 of the Acts of the Legislature of 1915, the Court of Common Pleas of Kanawha County was created, and by Section 22 of that chapter it was provided that an appeal or writ of error could be presented directly to this Court in all matters in which it had jurisdiction without first going through the appellate procedure in the Circuit Court of Kanawha County. In Robinson v. Charleston Interurban R. Co., 80 W.Va. 290, 92 S.E. 441, this Court held that act to be in conflict with Section 12 of Article VIII of the Constitution of this State in so far as it attempted to permit direct appeals from the Court of Common Pleas of Kanawha County to this Court. Section 4 of Article 4, the title of which is Time for Appeal or Writ of Error, succinctly provides that: 'No petition shall be presented to the circuit court or judge for an appeal from, or writ of error or supersedeas to, any judgment, decree or order rendered or made by such court of limited jurisdiction, whether the State be a party thereto or not, which shall have been rendered or made more than four months before such petition is presented.' This Court held in Elite Laundry Co. v. Dunn, 126 W.Va. 858, 30 S.E.2d 454, that, although the provisions of that section were general, it must prevail over the special law creating the Court of Common Pleas of Kanawha County, and, of course, prevail over any other specific provisions in other acts inconsistent with it. Section 7 of Article 4, in so far as pertinent, provides: 'The circuit court or the judge thereof, upon consideration of the petition, shall enter an order granting or refusing it. If the circuit court or judge deems the judgment, decree or order of such court of limited jurisdiction to be plainly right, and rejects it on that ground, * * *, no further petition shall afterwards be presented to the circuit court or judge for the same purpose; but in any case where the circuit court or judge rejects the petition, the petition and order of rejection, together with the record of the cause, may, within four months from the date of the order of rejection, be presented to the supreme court of appeals * * *.' (Italics applied.)

The language seems clear enough, and this Court so held in State v. Davidson, 134 W.Va. 328, 59 S.E.2d 469, 472, in sustaining a motion of the State to dismiss, as improvidently awarded, a writ of error and supersedeas to the judgment of the Circuit Court of McDowell County rejecting a petition for writ of error and supersedeas to a judgment of the Criminal Court of McDowell County, which judgment of the Circuit Court was entered more than four months before the petition for writ of error and supersedeas was filed in this Court. In the opinion, the Court said: 'We believe it also clear that, where a circuit court has rejected such a petition from a court of record of limited jurisdiction, the time for filing a petition in this Court for an appeal from, or writ of error or supersedeas to, the order of rejection, is limited to four months. * * *' While Section 7 applies to cases in which the circuit court, or judge thereof, rejects a petition for an appeal, writ of error or supersedeas, to the action of a court of limited jurisdiction, Section 17 applies to cases wherein the circuit court, or judge thereof, allows such petition. Perhaps the section should be quoted in its entirety: 'The circuit court, where an appeal, writ of error or supersedeas has been allowed by such court or the judge thereof in vacation, shall, upon the hearing thereof, affirm such judgment, decree or order if there be no error therein prejudicial to the appellant, or reverse the same in whole or in part if erroneous; and if, reversed, the circuit court may enter such judgment, decree or order as the court of limited jurisdiction should have entered, or may retain the case for new trial or hearing on further proceedings, or may remand it to the court of limited jurisdiction to be further proceeded in and finally determined. From any action of the circuit court in affirming or reversing any judgment, decree or order of such court of limited jurisdiction, an appeal or writ of error shall lie to the supreme court of appeals.' It will be noted that in this section there is no time fixed for an appeal to this Court from a final order of the circuit court. Section 18 provides that the circuit court may...