Newman v. Wright, (No. 9529)
| Citation | 126 W.Va. 502 |
| Decision Date | 22 February 1944 |
| Docket Number | (No. 9529) |
| Parties | Mrs. Russell C. Newman v. Kathryn Wright |
| Court | West Virginia Supreme Court |
Unless the contrary clearly appears the findings of fact by a Juvenile Court under the provisions of Chapter 49 of the Code are presumed to be supported by sufficient proof.
The provision of Code, 49-5-6, granting to an interested person the right to demand a jury trial of any question of fact is absolute and it is reversible error to refuse that demand when seasonably made in a case where an issue of fact is raised.
In a proceeding under Article 5 of Chapter 49, Code, the appointment of a guardian ad litem for the child defendant is not necessary.
Appeal from Circuit Court, Roane County.
Proceeding in the matter of Mrs. Russell C. Newman against Kathryn Wright. To review an order committing defendant to the West Virginia Industrial Home for Girls for an indefinite period, defendant brings error.
Reversed and remanded.
Wm. S. Ryan, for plaintiff in error. John M. Baker, for defendant in error.
Pursuant to a hearing held at Ripley, a vacation order was entered by the Circuit Court of Roane County sitting as a juvenile court on the fifth day of April, 1943, in the matter of Mrs. Russell C. Newman against Kathryn Wright, committing the defendant to the West Virginia Industrial Home for Girls at Salem for an indefinite period. This appeal was granted upon the petition of Kathryn Wright.
According to the averments of the petition, the infant respondent, Kathryn Wright, was born on the nineteenth day of October, 1925, in Roane County, so that the hearing preceded her eighteenth birthday by six months and fourteen days. The defendant resisted the commitment and was represented by counsel of her own selection who, after proof had been taken and prior to commitment, moved to dismiss the proceeding, first, because it had not been shown that the defendant was a delinquent child; second no case had been made against her as a neglected child; third no jury trial had been granted upon the defendant's demand; and fourth no guardian ad litem had been appointed to represent the infant.
An additional question is advanced in this Court to the effect that it is not alleged nor shown in any way that the petitioner is a reputable person as is required by Code, 49-5-7. Since this question was not raised below and was not considered by the juvenile judge and since we consider it as being only a matter of erroneous procedure, it does not involve a question that can be first raised in this Court.
Counsel for the petitioner or appellee raises the question of whether an appeal to this Court from an order of a juvenile court will lie, since it is not provided for in Code, 49-5-1, dealing with the creation of juvenile courts and with appeals so far as they affect the interrelated jurisdiction of courts of record in this State. In answer to this question we think that it is only necessary to call attention to Code, 49-7-18, which provides for appeals to this Court of questions arising under Chapter 49.
Another question that we believe should be dealt with, although not raised of record, is the power of the circuit judge of the Fifth Circuit including the counties of Jackson and Roane, to hold a hearing in Jackson County upon the question of whether an infant residing in Roane County is to be adjudged a delinquent or neglected child under Chapter 49. Since Code, 49-7-21, expressly provides that the powers conferred upon courts by Chapter 49 may be exercised by the judges of those courts in vacation, and since the judge of a court of record may approve a vacation order when not within the territorial jurisdiction of the court upon the records of which it is to be entered, we have no difficulty in concluding that in the hearings without a jury as contemplated by Chapter 49, the circuit judge may sit at any place within his circuit. However, we believe that it is perfectly apparent that this rule cannot be applied where a jury trial has been demanded and should be awarded under Code, 49-5-6. Nor do we wish the rule to be considered as applying to courts inferior to the circuit court in a manner that would justify them in sitting as juvenile courts entirely outside their denned territorial...
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...905; Sinclair Refining Co. v. Burkholder, 193 Ark. 62, 97 S.W.2d 925; Howell v. Van Houten, 227 Ark. 84, 296 S.W.2d 428; Newman v. Wright, 126 W.Va. 502, 29 S.E.2d 155; Goodman v. Little, 96 Ga.App. 110, 99 S.E.2d 517; Francis v. Wells, 4 Colo. The authorities offered by appellant for a rul......
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E. H., In re
...was made and it was at this proceeding that we accorded the right to demand a jury trial under W.Va.Code, 49-5-6. Newman v. Wright, 126 W.Va. 502, 29 S.E.2d 155 (1944); State ex rel. Marcum v. Ferrell, 140 W.Va. 202, 83 S.E.2d 648 Despite the statutory silence prior to 1977 on the right to ......
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...825; Rule v. Geddes, 23 App.D.C. 31. See also Wissenberg v. Bradley, 209 Iowa 813, 229 N.W. 205, 67 A.L.R. 1075. 3. See Newman v. Wright, 126 W.Va. 502, 29 S.E.2d 155; Ex parte Satterthwaite, 52 Mont. 550, 160 P. 346; In re Johnson, 173 Wis. 571, 181 N.W. 4. Boone v. Boone, 80 U.S.App.D.C. ......
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State ex rel. Marcum v. Ferrell, 10689
...or the judge of his own motion, may order a jury of twelve persons to try and question of fact.' This Court held in Newman v. Wright, 126 W.Va. 502, 29 S.E.2d 155, that the right to demand a jury trial under this section, upon any question of fact, is absolute, and that it is reversible err......