Morris v. Calhoun
| Decision Date | 15 February 1938 |
| Docket Number | 8700. |
| Citation | 195 S.E. 341,119 W.Va. 603 |
| Parties | MORRIS v. CALHOUN, Judge, et al. |
| Court | West Virginia Supreme Court |
Submitted January 12, 1938.
Syllabus by the Court.
1. Under the Constitution of this state, article 8, § 3, and Code, 51-1-3, this court has original jurisdiction in cases of prohibition, and this jurisdiction is not limited by rules of pleading applicable to trial courts.
2. Under Code, 53-1-1, the writ of prohibition lies as a matter of right "in all cases of usurpation and abuse of power when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers," and may issue upon a petition of a defendant showing grounds therefor, if filed before a general appearance by him, other than to attack a process, or a final decree or judgment in the proceeding sought to be prohibited, without regard to procedure had in a trial court with respect to the matters set out in such petition.
3. A defendant in a civil action cannot be legally served with process therein in a county other than that of his legal residence, when in such county in obedience to legal process or its equivalent; and while in such county, in obedience to a citation of a member of the Department of Public Safety to answer a criminal charge, may not be served with such process so long as the necessity for his presence to answer such charge continues, and a reasonable time thereafter.
Original proceeding in prohibition by William O. Morris, petitioner against the Honorable H. M. Calhoun, Judge, and others, to prohibit the further prosecution of a civil action pending before the named defendant.
Writ awarded.
H. G Shores, of Keyser, and G. K. Kump, of Romney, for petitioner.
George H. Williams, of Romney, and Charles Ritchie, of Charleston, for respondents.
This is an original jurisdiction proceeding in prohibition of William O. Morris against Harlan Calhoun, judge of the circuit court of Hampshire county, Sloan Hott, and Ida Hott, seeking to prohibit the further prosecution of a civil action pending in said court in which the Hotts are plaintiffs and the said Morris defendant. From the petition filed herein, the pertinent facts may be stated as follows:
The petitioner, a resident of Marion county, W. Va., while driving an automobile owned by him, on May 27, 1937, collided with a motortruck owned by Sloan Hott and Ida Hott, in Hampshire county in said state, and, from such collision, the wife of the petitioner suffered injuries from which she died shortly thereafter. A charge of reckless driving, probably informal, was lodged against the petitioner by a trooper of the Department of Public Safety, and he was cited by such authority to appear in Hampshire county on June 5, 1937, at 1 o'clock p. m., to answer such charge, and then permitted to leave that county. On June 5, 1937, in obedience to such citation, he returned to Hampshire county, and on that day, C. Ralph Hawkins, a state trooper, made a written complaint against him for reckless driving, before a justice of the peace, a warrant was issued thereon, and the petitioner taken into custody. While consulting with his attorney in relation to such charge, process in the civil action aforesaid, issuing from the circuit court of Hampshire county and returnable to June rules, 1937, was served on him.
The record in the civil action is presented with the petition, and it appears therefrom that at July rules, 1937, petitioner filed his plea in abatement, averring lack of jurisdiction in said court to hear said action by reason of the alleged fact that at the time of the service of the original process therein, the petitioner was in Hampshire county in answer to a criminal process. A demurrer to this plea was sustained on grounds bearing upon the lack of necessary allegation in the plea. A plea in abatement was also filed, setting up a defect in said process, and, upon the court allowing the process to be amended, the plea was overruled. Subsequent to this action on the part of the court below, petitioner filed his petition for prohibition in this court on the 25th day of October, 1937, before a general appearance in the case other than to attack the service of process on grounds affecting the jurisdiction of the court, and before final judgment.
A demurrer was filed on the part of the respondent judge, in which he avers that no fact alleged in the petition, other than those set out in the plea of abatement, can be considered by this court, and that the facts set out in such plea are insufficient to sustain the immunity from civil process contended for by the petitioner herein.
We are unable to concur in this view of the case. We think petitioner's right depends upon the allegation of his petition, and that we are not called upon to pass upon the sufficiency of the two pleas in abatement to which reference has been made. We are concerned here with ascertaining whether or not the court below had jurisdiction of the subject-matter of the suit and of the person impleaded. Both are necessary to enable the circuit court of Hampshire county to proceed in said action, and the absence of either is fatal to its jurisdiction. While the writ of prohibition is an extraordinary remedy, and only intended to be used in cases of necessity, such necessity arises where any court assumes to take jurisdiction of a cause or action not authorized by the Constitution or the statutes under which it acts; and courts having power through the writ of prohibition to guard against usurpation of jurisdiction should not be restrained by technical rules.
Whether the process complained of is void or voidable is not material in this case. In the ordinary civil case, jurisdictional questions, especially those respecting jurisdiction of the parties, may be waived; but this does not limit the right of a litigant to raise the question, and it may be done in this state by prohibition which, under our statute, issues as a matter of right. The words "void" and "voidable" are generally used in connection with the judgment or decree entered in cases where questions of jurisdiction might have been raised. In this case, the service of process was voidable, and the defendant might have waived his right to attack it, but when he chose to attack it, this court can declare the same void and of no effect in conferring jurisdiction of the defendant therein, and thus justify the awarding of the writ prayed for. Such attack must be made before a general appearance in the cause or action, other than one made to attack a process or the service thereof on grounds affecting the jurisdiction of the court, and before a final decree or judgment thereon. If there is a general appearance to the merits on any matter not affecting the jurisdiction of the court, the defect in the service is waived. Parfitt v. Sterling Veneer & Basket Co., 68 W.Va. 438, 69 S.E. 985, holds that the filing of a plea in abatement at rules is a general appearance and constitutes a waiver of defects in the service of process; but that was a case where the jurisdiction of the parties was not in dispute, and cannot be held to apply to a case where the very purpose of the plea was to challenge the court's jurisdiction. It would be strange, indeed, if the very raising of the question of the court's jurisdiction would result in conferring on the court the jurisdiction challenged.
Taking the allegations of the petition to be true, as we must, the petitioner is clearly entitled to...
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