Lance v. Mccoy

• Court: Supreme Court of West Virginia
• Writing for the Court: Brannon
• Citation: 34 W.Va. 416,12 S.E. 728
• Parties: Lance . v. McCoy.
• Decision Date: 10 December 1890

12 S.E. 728
34 W.Va. 416

Lance .
v.
McCoy.

Supreme Court of Appeals of West Virginia.

Dec. 10, 1890.

Insanity—Appointment of Committee—Notice— Revocation.

1. Before a county court can appoint a committee for an insane person who has not been found, insane by a justice on examination for lunacy, or in a court wherein he is charged with crime, five days' notice must be given to the person suspected to be insane, as required by section 38, c. 58, Code 1887.

2. Though such an appointment be made without such notice, and though it be void, yet an injunction will not lie to restrain the exercise of powers under such appointment, as there is adequate remedy at law.

3. Such appointment may be revoked under section 10, c. 87, Code 1887.

(Syllabus by the Court.)

Dayton & Dayton, for appellant.

Melville Peck, for appellee.

Brannon, J. This is an appeal taken by Winfield S. McCoy to a decree pronounced July 14, 1888, by the circuit court of Barbour county in a suit brought by Elizabeth Lance against McCoy. In November, 1887, Elizabeth Lance presented to the judge of the third circuit a bill in chancery, in which she alleged, among other things, that she was owner of certain personal estate, and aged, but of good, clear understanding, competent to manage such affairs as called upon her; that an imbecile son of hers, conceiving the idea that she should have a committee, made oath, and procured other persons to make oath, before the county court of Barbour county, that she was insane, and not capable of taking care of herself, and had said McCoy appointed her committee, who qualified as such; that this was done without her knowledge or consent; that McCoy had sold some of her property, and proposed to appraise and sell all of it, and she did not know what disposition was to be made of herself; that the appointment of such committee was secret, and a great outrage and disturbance to her in old age, in her peaceful country home, where she was living nicely, near by a son, surrounded by her cows and other stock; that she needed no committee; that, if she had had notice, she could have defeated the appointment, but court had adjourned before she heard of it. She prays that as she was thus, by the act of an imbecile, without notice, distressed and robbed of all her peace of mind, the court would enjoin McCoy from all further action as her committee until the matter could be inquired into, and she could have a chance to establish her sanity, and that, when she should do so, said committee he discharged from further service, and required to restore all her property wrongfully taken away from her, and the money for any which he had sold. The judge granted the injunction as prayed for. McCoy filed his answer, whereby he resisted relief to the plaintiff by reason of want of jurisdiction and other matters of fact, and prayed dismissal of the cause. The cause was heard on bill, answer, general replication, and depositions, and a decree pronounced that McCoy be perpetually enjoined from taking into his custody the person or property of the plaintiff, and that he deliver to...