Korczyk v. Solonka, C. C. No. 720.

CourtSupreme Court of West Virginia
Writing for the CourtLOVINS
Citation42 S.E.2d 814
Docket NumberC. C. No. 720.
Decision Date20 May 1947
PartiesKORCZYK et al. v. SOLONKA et al.

42 S.E.2d 814

KORCZYK et al.
v.
SOLONKA et al.

C. C. No. 720.

Supreme Court of Appeals of West Virginia.

May 20, 1947.


[42 S.E.2d 815]
Syllabus by the Court

1. Matured installments provided for in a decree ordering the payment of specified monthly sums by a husband to his wife, for the maintenance and support of their children, stand as decretal judgments against the man charged therewith and constitute a lien on his real estate under Code, 38-3-6.

2. A woman who has been divorced from her husband and awarded monthly payments, to be made by the husband to her for the support and maintenance of their children, may maintain a suit to enforce the lien of the decree respecting matured and unpaid installments.

3. The limitation provided in Code, 38-3-18, applied to a decretal judgment payable in installments, commences to run when each installment becomes due, as to the part of said judgment then payable.

Certified from Circuit Court of Raleigh County.

Suit by Sophie Korczyk and others against Emil Solonka and others to subject the real and personal property of the

[42 S.E.2d 816]

named defendant to the satisfaction of a judgment. The trial court sustained a demurrer to the bill of complaint and certified certain questions to the Supreme Court of Appeals for answer.

Questions answered and ruling of trial court reversed.

B. F. Howard, of Welch, for plaintiffs.

Clay S. Crouse, of Beckley, for defendants.

LOVINS, Judge.

The purpose of this suit, brought in the Circuit Court of Raleigh County by Sophia Korczyk, in behalf of herself, Frank Solonka, Steven Solonka, Helen Solonka, and Elsie Solonka, and all other lien creditors of Emil Solonka, against Emil Solonka and Jennie Solonka, is to subject the real and personal property of Emil Solonka to the satisfaction of a decretal judgment rendered by the Circuit Court of Logan County on July 29, 1929.

The suit arises in this manner: Sophia Korczyk and Emil Solonka were married in 1917. Four children were born of their marriage, namely, Frank, Steven, Helen and Elsie Solonka. Sophia Korczyk, then Sophia Solonka, instituted a suit for divorce against Emil Solonka in the Circuit Court of Logan County, and that court on the 29th day of July, 1929, pronounced a decree, awarding her a divorce from bed and board, granting her the sole custody and control of the children, decreeing that Emil Solonka pay to Sophia Solonka the sum of $40 a month for the maintenance of the above-mentioned children until the further order of the court, and adjudged costs against Emil Solonka in the sum of $80.75. The ages of the children at the time of the divorce were eight years, six years, four years, and seventeen months, respectively. At the time of the institution of this suit the ages of said children were twenty-four, twenty-two, twenty and eighteen years, respectively.

Emil Solonka made no payments of either the monthly sums decreed for the support and maintenance of his children or the court costs. Plaintiff alleges that since the divorce was awarded she has supported and educated the said children by her own efforts, and without the aid of said Emil Solonka; but she does not aver that she has actually expended the sum of $40 each month for the support of said children.

The unpaid installments of the decretal judgment entered by the Circuit Court of Logan County, calculated to October 1, 1945, amounts to $11,464.20, which evidently includes interest on said installments.

The plaintiff caused an execution to be issued upon said decretal judgment on the 21st day of October, 1945, which was directed to and placed in the hands of the Sheriff of Raleigh County, who returned said execution "No property found out of which the within execution can be made." She obtained an abstract of the decretal judgment rendered by the Circuit Court of Logan County, and placed the same on record in the office of the Clerk of the County Court of Logan County, and on November 8, 1945, likewise caused said abstract to be recorded in the judgment Lien Docket in the office of the Clerk of the County Court of Raleigh County.

Emil Solonka, at the time of the recordation of the aforesaid abstract of judgment, was, and, so far as is shown by the record, is now the owner of one tract of land and the surface of another tract of land situate in Raleigh County, West Virginia, and is the lessee of a building to be used as a dwelling house and for commercial purposes owned by Price Hill Colliery Company.

Emil Solonka is the owner of a restaurant and mercantile business conducted under the name of "The Spinning Wheel" at Cranberry, Raleigh County, in the name of his present wife, Jennie Solonka. Plaintiff asserts that the merchandise, fixtures, equipment and business of said Spinning Wheel are subject to the satisfaction of the said decretal judgment and the execution issued thereon.

This suit is brought by plaintiff on behalf of herself, her children, and all other lien creditors of said Emil Solonka. She prays that the liens may be ascertained and their priorities established; that the interest of Emil Solonka in the goods, wares, merchandise and business used in "The Spinning Wheel" be ascertained; and that the real

[42 S.E.2d 817]

estate and personal property, or so much thereof as may be necessary, be sold to pay off and discharge her lien.

The trial court sustained a demurrer to the bill of complaint and certified eight questions arising on the demurrer which, so far as pertinent, are substantially as follows: (1) Is the bill of complaint sufficient to justify granting the relief prayed for; (2) is the lien created by the decretal judgment rendered by the Circuit Court of Logan County enforceable against the real estate of the defendant in this suit; (3) does the trial court have jurisdiction of this suit; (4) may the plaintiff maintain this suit in behalf of herself and her children, or should said children have been joined as parties plaintiff; (5) if this suit is otherwise maintainable, is it necessary to allege that plaintiff has expended $40 each month for the support and maintenance of her children; and (6) is the relief sought by the plaintiff barred by laches or the statute of limitations?

An examination of the bill of complaint in the instant case and the exhibits filed therewith discloses an inconsistency in that the bill alleges that plaintiff was granted a divorce by the Circuit Court of Raleigh County. But the exhibits filed with said bill clearly show that plaintiff instituted her suit for divorce in the Circuit Court of Logan County and prosecuted the same to a final decree in that county. We are not disposed to regard that inconsistency as material, and regard the exhibits as being correct and that the decree awarding payments to plaintiff for the support of her four children was pronounced by the Circuit Court of Logan County, West Virginia.

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22 practice notes
  • Rakes v. Ferguson, No. 12212
    • United States
    • Supreme Court of West Virginia
    • March 19, 1963
    ...and harmful circumstance in procuring the decree. Robinson v. Robinson, 131 W.Va. 160, 50 S.E.2d 455; Korczyk v. Solonka, 130 W.Va. 211, 42 S.E.2d 814; Holcomb v. Holcomb, 122 W.Va. 293, 8 S.E.2d 889; Harman v. Harman, 120 W.Va. 199, 196 S.E. 361; Biggs v. Biggs, 117 W.Va. 471, 185 S.E. 857......
  • State ex rel. Cecil v. Knapp, No. 11012
    • United States
    • Supreme Court of West Virginia
    • November 11, 1958
    ...his wife in a manner suited to his means and social position. 6 M.J., Divorce and Alimony, Section 59; Korczyk v. Solonka, 130 W.Va. 211, 42 S.E.2d 814; Miller v. Baer, 114 W.Va. 566, 172 S.E. 612; Burdette v. Burdette, 109 W.Va. 95, 153 S.E. 150; Reynolds v. Reynolds, 68 W.Va. 158 69 S.E. ......
  • Robinson v. Robinson, No. CC728.
    • United States
    • Supreme Court of West Virginia
    • March 2, 1948
    ...be cancelled. Biggs v. Biggs, 117 W. Va. 471, 185 S.E. 857; Harman v. Harman, 120 W.Va. 199, 196 S.E. 361. In Korczyk v. Solonka, W.Va., 42 S.E.2d 814, 815, it was held: "Matured installments provided for in a decree ordering the payment of specified monthly sums by a husband to his wi......
  • Robinson v. Robinson, (CC 728)
    • United States
    • Supreme Court of West Virginia
    • March 2, 1948
    ...Harman v. Harmon, 120 W. Va. 199, 196 S. E. 361; Holcomb v. Holcomb, 122 W. Va. 293, 8 S. E. 2d 889; Korczyk v. Solonka, 130 W. Va. 211, 42 S. E. 2d 814. In all the cases just cited, except the case [131 W.Va. 177] of Korczyk v. Solonka, 130 W. Va. 211, 42 S. E. 2d 814, the judgments involv......
  • Request a trial to view additional results
22 cases
  • Rakes v. Ferguson, No. 12212
    • United States
    • Supreme Court of West Virginia
    • March 19, 1963
    ...and harmful circumstance in procuring the decree. Robinson v. Robinson, 131 W.Va. 160, 50 S.E.2d 455; Korczyk v. Solonka, 130 W.Va. 211, 42 S.E.2d 814; Holcomb v. Holcomb, 122 W.Va. 293, 8 S.E.2d 889; Harman v. Harman, 120 W.Va. 199, 196 S.E. 361; Biggs v. Biggs, 117 W.Va. 471, 185 S.E. 857......
  • State ex rel. Cecil v. Knapp, No. 11012
    • United States
    • Supreme Court of West Virginia
    • November 11, 1958
    ...his wife in a manner suited to his means and social position. 6 M.J., Divorce and Alimony, Section 59; Korczyk v. Solonka, 130 W.Va. 211, 42 S.E.2d 814; Miller v. Baer, 114 W.Va. 566, 172 S.E. 612; Burdette v. Burdette, 109 W.Va. 95, 153 S.E. 150; Reynolds v. Reynolds, 68 W.Va. 158 69 S.E. ......
  • Robinson v. Robinson, No. CC728.
    • United States
    • Supreme Court of West Virginia
    • March 2, 1948
    ...be cancelled. Biggs v. Biggs, 117 W. Va. 471, 185 S.E. 857; Harman v. Harman, 120 W.Va. 199, 196 S.E. 361. In Korczyk v. Solonka, W.Va., 42 S.E.2d 814, 815, it was held: "Matured installments provided for in a decree ordering the payment of specified monthly sums by a husband to his wi......
  • Robinson v. Robinson, (CC 728)
    • United States
    • Supreme Court of West Virginia
    • March 2, 1948
    ...Harman v. Harmon, 120 W. Va. 199, 196 S. E. 361; Holcomb v. Holcomb, 122 W. Va. 293, 8 S. E. 2d 889; Korczyk v. Solonka, 130 W. Va. 211, 42 S. E. 2d 814. In all the cases just cited, except the case [131 W.Va. 177] of Korczyk v. Solonka, 130 W. Va. 211, 42 S. E. 2d 814, the judgments involv......
  • Request a trial to view additional results

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