McKinley v. Queen
| Decision Date | 18 May 1943 |
| Docket Number | 9447. |
| Citation | 25 S.E.2d 763,125 W.Va. 619 |
| Parties | McKINLEY et al. v. QUEEN et al. |
| Court | West Virginia Supreme Court |
Powell, Clifford & Jones and Catherine C Clifford, all of Clarksburg, for appellants.
Johnson & Johnson and Charles B. Johnson, all of Clarksburg, for appellees.
On the 1st day of December, 1939, the County Court of Harrison County in a proceeding ex parte under Code, 41-5-10, admitted to probate the purported will of Thomas Jefferson McKinley deceased. The writing admitted to probate devised specific real estate to all McKinley's children, except Orma McKinley Vanscoy, and also bequeathed $200 each to Louis and Goldie Cox. This suit was commenced on the 21st day of November, 1941, by the issuance of a writ naming certain interested parties and all the beneficiaries in the testamentary writing, except Louis and Goldie Cox. The writ was returnable to December rules, 1941, and service thereof was had on all defendants named therein, except Orpha Queen and Charles G. Queen, who being nonresidents were served by order of publication.
On December 1, 1941, that being the first day of December rules appellants filed in the office of the clerk of the Circuit Court of Harrison County a writing denominated "amended praecipe", which directed the issuance of a writ returnable to January rules, 1942. In the last-mentioned writ all of the original parties were named and, in addition thereto, Louis and Goldie Cox were designated parties defendant. Personal service of the writ issued December 1, 1941, was made on Goldie Cox, but as to Louis Cox there was no return. No service of the last-mentioned writ was had on the other parties defendant. At January rules 1942, an alias writ was issued as to Louis Cox, which was returned January 10, 1942, indorsed "not found". The record discloses no further attempt to bring Louis Cox into the suit.
The bill of complaint, filed at January rules, 1942, sought to impeach McKinley's will under Code, 41-5-11, on the ground that the testator was of unsound mind at the time of the execution of said will. A decree directing an issue of devisavit vel non was made September 8, 1942. Orpha McKinley Queen and Opal Oelze, two of the parties defendant, appeared on September 10, 1942, filed a written motion to set aside the decree of September 8, and asked leave to demur to the bill on the ground that said bill was not filed within two years from the date of the order of probate of the McKinley will. The trial chancellor sustained the
motion to set aside the decree of September 8, 1942, and permitted defendants orally to "demur" to the bill on the ground hereinabove stated, and by the same order fixed a date for a hearing on the "demurrer". Thereafter the trial chancellor, no written demurrer being filed, entered a decree sustaining the "demurrer" and dismissing the bill of complaint, to review which decree this appeal was granted.
In addition to the questions raised by the appellants' contentions hereinafter appearing, we think it necessary to determine whether we may look to the writ commencing the suit. Oyer of the writ does not appear in the record.
The historical background of the procedure formerly necessary for issuance of a writ commencing a stut and one commencing an action is one reason for holding that the former is intrinsically a part of the record, and that the latter is not so without oyer first had. A writ commencing a suit in equity under the English practice did not issue until the bill of complaint was filed. United States Blowpipe Co. v. Spencer, 46 W.Va. 590, 597, 33 S.E. 342. At common law a writ commencing an action was obtained by filing a praecipe, the function of which was to procure issuance of the writ. Burke's Pleadings and Practice, 3d Ed., page 48. It suffices to say that the distinction hereinabove noted as to the issuance of writs has been removed by statute. Code, 56-3-4; Geiser Mfg. Co. v. Chewning, 52 W.Va. 523, 535, 44 S.E. 193.
In an action at law the writ is not a part of the record without oyer thereof. Snyder v. Philadelphia Co., 54 W.Va. 149, 46 S.E. 366, 63 L.R.A. 896, 102 Am.St.Rep. 941, 1 Ann.Cas. 225. It would seem that the same rule was partially applied with reference to a writ commencing a suit in equity. In the case of Wilson v. Ritz, 96 W.Va. 397, 400, 123 S.E. 63, 64, it was said: "In default judgments or decrees, the process, including the return, becomes a part of the record; but not so, except in cases of default". This court in the case of Wildasin v. Long, 74 W.Va. 583, 587, 82 S.E. 205, 206, speaking by Judge Miller, stated a rule which is partially in conflict with that announced in Wilson v. Ritz, supra. We quote from the opinion in the Wildasin case: . The statute mentioned in the foregoing quotation from the Wildasin case was in existence at the time of the formation of the State, and when the decision in that case was made was not applicable to actions at law. In the year 1915, Section 6, Chapter 135, Code, was amended and re-enacted so that by implication it applied to actions at law, as well as suits in equity. Section 6, Chapter 69, Acts of 1915. With slight changes the re-enacted statute was incorporated in the Code of 1931, Code, 58-5-7. We think Code, 58-5-7, and prior enactments from which it is derived, furnish an additional reason for holding that a writ commencing a chancery suit is a part of the record. Considering the difference in the historical background of the two writs, the conclusion reached in the Wildasin case and the provisions of Code, 58-5-7, we disapprove the statement in the opinion in Wilson v. Ritz, supra, in so far as it applies to writs commencing a suit, approve the holding in the case of Wildasin v. Long, supra, and conclude that a writ commencing an equity suit is a part of the record. Hogg's Equity Procedure, 3d Ed. (Miller), Vol. 1, Section 341. In view of the provisions of Code, 56-3-4 and 58-5-7, no reason is perceived why a writ commencing an action at law should not be considered a part of the record without oyer, but that question is not before us.
On looking to the writ herein, it appears that one writ was issued within two years after the probate of the will and that another was issued after the expiration of that period. The effort made by the appellants to cure a nonjoinder of party defendants by resorting to "an amended praecipe" is of doubtful effect as to commencing a new suit. An original writ cannot be altered to bring in new parties in the absence of statutory authority. Agee v. Virginian Railroad Co., 98 W.Va. 109, 126 S.E. 564.
The issuance of process dated December 1, 1941, adding the names of Louis Cox and Goldie Cox, as parties defendant, did not amount to an alteration of the first writ and apparently was done for the sole purpose of curing a nonjoinder of parties defendant. Code, 56-4-34, provides a simple and sufficient method by which the joinder of any party necessary for final and complete determination of the suit may be effected. The writ dated November 21, 1941, having been served on all the named defendants, the writ subsequently issued with two parties defendant added is not an alias writ. Code, 56-3-21; Gorman v. Steed, 1 W.Va. 1 . We are aware that the holding in the Gorman case is said to be obiter. Dunaway v. Lord, 114 W.Va. 671, 673, 173 S.E. 568. Nevertheless, a correct legal principle is stated therein; the court there citing Section 3, Chapter 170, Code of Virginia, 1860, the terms of which are identical with Code, 56-3-21.
The appellants did not dismiss their suit commenced November 21, 1941, but undertook to effect a joinder of parties defendant by issuance of an additional writ. Such procedure is not authorized, and we regard the issuance and service of the writ dated December 1, 1941, as having no legal effect on the questions involved in this appeal. As to the effect of omission of necessary parties and their joinder after the expiration of two years, see Jackson v. Jackson, 84 W.Va. 100, 110, 99 S.E. 259.
The appellants in substance say that the question of the trial court's jurisdiction was not properly raised, there being no written demurrer, as contemplated by Code, 56-4-36, and that the trial court was in error in holding that it was without jurisdiction.
On the question of a written demurrer it is obvious that the plain terms of Code, 56-4-36, when strictly applied, require that a demurrer in writing be filed before the sufficiency of a pleading questioned thereby can be considered and determined. See Duncan v. New River P. C. Coal Co., 114 W.Va 388,...
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