Lance v. McCoy

• Citation: 12 S.E. 728,34 W.Va. 416
• Parties: LANCE v. McCOY.
• Decision Date: 10 December 1890
• Court: West Virginia Supreme Court

12 S.E. 728

34 W.Va. 416

LANCE v. McCOY.

Supreme Court of Appeals of West Virginia.

December 10, 1890

Syllabus by the Court.

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.

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 her all money and property in his hands as committee.

The point first assigned as error in the decree is want of jurisdiction in equity to entertain the complaint. It cannot be said that jurisdiction of this suit can be maintained on the theory that courts of equity have jurisdiction over the persons and property of lunatics as a special jurisdiction for such courts in America do not possess it, except in a few states where statutes confer it. Pom. Eq. Jur. § 1313. They exercise jurisdiction over committees for account as fiduciaries, but have no special jurisdiction because a person is non compos. Jurisdiction is asserted by appellee's attorney on the theory that the appointment of the committee was void for want of notice, and therefore equity can be appealed to to declare and treat it as void. Section 38, c. 58, Code 1887, provides that if a person not found insane by a justice on an inquest of lunacy, or in a court wherein he is charged with crime, be suspected to be insane, a circuit court shall, on the application of any one interested, and after five days' notice to the person suspected, examine into his state of mind, and, being satisfied that he is insane, shall appoint a committee of him. Thus, clearly, the circuit court cannot appoint a committee without notice. But this appointment was by the county court, and as to it the grant of jurisdiction in chapter 39, § 9, Code, is only in the general language used in the constitution, (article 8, § 24,) namely: "They shall have jurisdiction in all matters of probate, the appointment and qualification of personal representatives, guardians, committees, curators," etc., without any regulation as to notice, or the procedure as to appointment of committees; and therefore it may be said that as to appointment by the county court of committees there is no requirement of notice. This would present the anomaly that the circuit court must, while the county court need not, give notice. But I think we should, under a familiar rule of construction,--that all statutes in parimateria should be read together,--read this provision as to the county courts along with said section 38 of chapter 58, regulating the appointment of committees by circuit courts; thus requiring notice in county courts, as well as circuit courts. Considering...