State Ex Rel. Heatherly v. Sheriff

• Decision Date: 19 March 1892
• Citation: 36 W.Va. 223,14 S.E. 1001
• Court: West Virginia Supreme Court
• Parties: State ex rel. Heatherly v. Shank. Sheriff.

14 S.E. 1001

36 W.Va. 223

State ex rel. Heatherly

v.Shank. Sheriff.

Supreme Court of Appeals of West Virginia.

March 19, 1892.

Sheriffs — Failure to File Bond—Vacancy in Office—Quo Warranto—Parties.

1. Where a sheriff has been regularly elected, aud, having qualified and given bond as required by law, has assumed the duties of his office, such office cannot be declared vacant by the county court, under section 20 of chapter 10 of the Code, for failure to give a now or additional bond to that already given, when so required by said court, until he is notified of such requirement.

2. Service of such notice will not be sufficient to authorize the court to declare such office vacant for failure to comply with such requirement, if the same is delivered to such sheriff when he is non. compos mentis or insane.

3. Where the office of sheriff is declared vacant for failure on the part of the sheriff to give a new or additional bond when so required by the county court, and another person is appointed by said court to fill the vacancy so declared, and proceedings in the nature of a writ of quo warranto are instituted by the sheriff so deprived of the office against "the person appointed to fill the vacancy so declared, and the latter declines to make any defense to said proceeding, the circuit court cannot admit the county court as a defendant against said proceeding.

(Syllabus by the Court.)

Error to circuit court, Barbour county; Joseph T. Hoke, Judge.

Quo warranto proceedings by J. E. Heatherly against John W. Shank. From a judgment for defendant, plaintiff brings error. Reversed.

Dayton & Dayton, for plaintiff in error.

Chas. F. Teter, for defendant in error.

English, J. This was a proceeding in quo warranto instituted by J. E. Heatherly In the circuit court of Barbour county at, the July term, in the year 1889, against John W. Shank. The petition then filed by said J. E. Heatherly represented that at the general election for this state held on the 6th day of November, 1888, he was duly elected in the manner required by law sheriff of said county of Barbour; that the certificate of election thereto was regularly awarded to him, and that on the 11th day of November, 1888, he executed before the county court of said county approved bonds such as are required by law, and duly qualified as such sheriff, and he exhibited a certified copy of the record ev idencing the action of said county court; that the term of said office so invested by the choice of tbe good people of said couu ty is fixed by law to begin on the 1st day of January, 1889, and extends thence for the succeeding four years, so that for that time petitioner became invested with and entitled to the said office of sheriff, with all the rights, profits, and immunities thereto appertaining; and heaversand insists that he is now in fact such sheriff, and has done nothing whereof to be properly deprived thereof. So it was, however, on the 11th day of January, 1889, petitioner fell violently ill, so that he was confined to his house and room, and has no general recollection of passing events as they happened around bim from the Sunday following, that is, from the 13th day ol January, 1889, until he found himself in the insane asylum at Weston thereafter. During the earlier part of his said illness the petitioner's life was for a long timede-spaired of, and he had four skillful physi cians iu consultation over him, as he was credibly Informed. During this time he was in a state of utter mental alienation, but, becoming improved in health, he was, as he was informed, by regular proceedings de lunatico inquirendo, found insane, and committed to the said asylum on the 25th clay of April following, and w^ras from there discharged on the 31st day of May, 1889. That petitioner, wjib had no committee appointed for him over his estate at any time, was from the 13th day of January to the 3l8t day of May following non compos mentis, and therefore civiliter niortuus, a»() could not be madea party or held answerable to any civil process without the intervention of a personal representative in whose name to proceed. That on the 6th day of February, 1889, the same county court whose members had taken such action as that of the previous November 11th in the premises, determined upon a counter procedure therein, and accordingly they ordered petitioner peremptorily, without leave, to show cause against it, to givenew or additional bonds on the first day of the ensuing April term of their court. An amotion from said office was not suggested or hinted at as a consequence of default, but that nevertheless some one, as he is informed, in violation of the express orders of his physician, was found so armed to force his way and make personal service of such court order upon petitioner, who was as wholly unconscious thereof as a dead man. That this assumed service in person purports to have been made the 11th day of March, 1889, and an attested copy of said court order, and return thereon, were exhibited with said petition. That his situation and mental condition were well known to the said county court at the time, as it was notorious throughout the county, yet the said court on the 5th day of April. 1889, without any motion made or specialgrounds set forth, made its order of record depriving petitioner of his said office, and appointing the defendant John W. Shank as such sheriff in the place of petitioner, an attested copy of which was exhibited. That the said John W. Shank, a surety of petitioner on his official bond, was also constituted and sworn as petitioner's deputy, and was such deputy at the time ho so became substituted as such sheriff to petitioner. That, under color of such action and authority of the said county court, it is, as petitioner infers and believes, that the said John W. Shank expects to justify and sustain himself in the premises, and, relying on said color of right, the said John W. Shank refused to surrender bis pretensions, but has proceeded to constitute and have sworn a deputy under himself, as such sheriff of Barbour county, which he pretends and asserts himself to be, and to have full right and title therein; and petitioner averred that said John W. Shank had intruded into and usurped the said office from him as contemplated in the 4th clause of section 6 of chapter 109 of the Code of 1887. That under the ninth section of said chapter petitioner was entitled to file an information in the nature of a writ of quo warranto against him, the said Shank, to assert petitioner's right and title as against him in the premises, wherein all that is shown in the said county court action will not sustain the said defendant's claim of right therein. He therefore prayed leave to file such information in the circuit court against said Shank, and that a rule might be awarded in vacation against the said Shank, returnable at the next term, citing him to show cause, if any he could, why the said information should not be then and there filed, which petition was duly signed and sworn to.

At the July term, 1889, of said circuit court, an information was filed by said J. E. Heatherly as follows, to wit: "James E. Heatherly, under and by virtue of the statute in such cases made and provided, now, in the name of the state of West Virginia, here in open court comes, and prosecutes herein, and gives this honorable court to understand and be informed as follows, to wit: That whereas, at a general election on behalf of and by the people of the state, in and through the several counties, on the 6th day of November, A. D. 1888, he, the said James E. Heatherly, was duly elected sheriff of the said county of Barbour for and during the term of four years, to commence and be held on and from the 1st day of January, A. D. 1889, for the said term, to be from thence fully completed and ended; and that after such election, and the same having been properly certified to him according to law, he...