State ex rel. Godby v. Chambers

• Decision Date: 11 April 1947
• Docket Number: 9933.
• Citation: 42 S.E.2d 255,130 W.Va. 115
• Parties: STATE ex rel. GODBY v. CHAMBERS, Judge of Circuit Court, Logan County, et al.
• Court: West Virginia Supreme Court

42 S.E.2d 255

130 W.Va. 115

STATE ex rel. GODBY v. CHAMBERS, Judge of Circuit Court, Logan County, et al.

No. 9933.

Supreme Court of Appeals of West Virginia.

April 11, 1947

Syllabus by the Court.

1. A sentence for a misdemeanor is not process within the meaning of the immunity rule.

2. A person serving a sentence for a misdemeanor is not immune to the service of a summons in a civil proceeding.

Mark T. Valentine, of Logan, for relator.

Chauncey Browning, of Logan, for respondents.

KENNA, Judge.

The petition in this original proceeding of prohibition brought by George F. Godby against Honorable C. C. Chambers, Judge of the Circuit Court of Logan County, and Clark Bell administrator of the estate of Carlos Gene Bell, deceased alleges that the petitioner is a resident of Cabell County and that on July 21, 1946, while operating his automobile in Logan County he struck Carlos Gene Bell who later died as the result of the injuries received; that petitioner was immediately placed in the county jail of Logan County and that on the 22d day of July, 1946, a warrant charging reckless driving was served; that when petitioner appeared on the 27th day of July in response to an appearance bond that he had given and while in Logan County for that purpose only Carlos Gene Bell having in the meantime died, a warrant charging manslaughter was served on him; that he waived hearing and gave a bond in the penalty of $1,000.00 for his appearance before the Circuit Court of Logan County to answer an indictment that might be returned against him and that on the 9th day of September, 1946, he was indicted for manslaughter and on the 13th day of September he appeared pursuant to his bond and entered a plea of nolo contendere to involuntary manslaughter and was ordered to appear at a later date to be sentenced, and that on the 30th day of October 1946, he did appear and was sentenced to serve four months in the Logan County jail and fined the sum of $200.00; that his sentence immediately began and that he served the sentence being discharged on the 3d day of February, 1947; that on the 13th day of November, 1946, an action of death by wrongful act was instituted by Clark Bell, Administrator, etc., and that on the same day a summons in said action was served upon petitioner while incarcerated in the Logan County jail pursuant to the sentence of the Circuit Court of Logan County; that except for the two periods July 21, 1946, to July 22, 1946, and October 30, 1946, to February 3, 1947, the petitioner has at all times been in Cabell County and not in Logan County except to answer a bond and serve the sentence that was imposed. The petition goes on to allege that on the first Monday in January, 1947, at January Rules, the petitioner filed his verified plea in abatement alleging the facts recited above and denying that the Circuit Court of Logan County had obtained jurisdiction of his person in the action for death by wrongful act then pending wherein Clark Bell, Administrator, is plaintiff, and petitioner is defendant, by virtue of the service of a summons so obtained upon him, the petitioner. To that plea Clark Bell, Administrator, etc., filed his demurrer in writing contending the petitioner was not immune to the service of process; and that on the 7th day of February the petitioner, appearing only for that purpose, joined in the demurrer, and that on the 14th day of February, 1947, the Judge of the Circuit Court of Logan County sustained the demurrer and declined to certify to this Court the questions of law so arising and set the action for trial on the 20th day of February, 1947. Therefore this petition.

There is a question involving whether the petition before this Court presents a matter appearing of record in the Circuit Court of Logan County. The petition alleges the filing by the petitioner of a plea in abatement challenging that court's jurisdiction of the person of the defendant, Godby. That jurisdiction of course rested upon the validity of the summons and of its service upon the defendant. The plea in abatement, resting as it does upon immunity, partakes of the nature of a plea by way of confession and avoidance, its function being to introduce into the record new matter until then extraneous of the record, for the purpose of attacking a record showing made by the otherwise valid return. Here the petition fails to allege that the process under attack was made a part of the record. That could have been done in an action at law only by craving oyer of the writ and return. Lambert v. Ensign Mfg. Co., 42 W.Va. 813, Point 4, Syllabus, 26 S.E. 431; Snyder v. Philadelphia Company, 54 W.Va. 149, 46 S.E. 366; Pancake v. Hite, 105 W.Va. 366, 368, 142 S.E. 518; Netter-Oppenheimer & Company v. Elfant, 63 W.Va. 99, 102, 59 S.E. 892, and McKinley v. Queen, 125 W.Va. 619, 622, 25 S.E.2d 763. We believe that it is a matter of very serious doubt whether the question attempted to be presented here by the petition appears properly upon the record of the Circuit Court of Logan County because the process under attack did not appear upon that court's record. In the absence of an allegation to the contrary the presumption here is that the state of the record, i. e. the absence therefrom of the process under attack, would sustain the ruling of the trial court. However, since the point is not specifically raised by demurrer to the petition or otherwise, we do not regard it as necessary to consider it now, and comment only in order that we may not be understood as approving the absence of oyer in treating process under attack as a part of the record.

That prohibition lies to test the question of jurisdiction over the person of a defendant in a personal action has been settled in this...