State Ex Rel. Joe Sabatino v. Richards.

• Decision Date: 29 May 1945
• Docket Number: (CC 701)
• Citation: 127 W.Va. 703
• Parties: State ex rel. Joe Sabatino v. Robert A. Richards et al.
• Court: West Virginia Supreme Court

127 W.Va. 703

State ex rel. Joe Sabatino

v.Robert A. Richards et al.

(CC 701)

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1945.

Decided May 29, 1945.

1.Limitation of Actions

In an action at law, where the declaration shows the date when the cause of action accrued, and the summons commencing the action is made a part of the record by oyer, the statute of limitations may be raised by demurrer.

2.Limitation of Actions

The statute of limitations applicable to an action on the official bond of a constable to recover penalties prescribed by Code, 38-8-8, for a refusal of an officer to release money or property in his control which has been exempted as provided by Code, 38-8-3, is one year.

3.Limitation of Actions

In an action brought on the 22d day of December, 1943, the applicable one-year statute of limitations does not bar recovery on a cause of action which arose on the 22d day of December, 1942.

Fox, Judge, absent.

Certified from Circuit Court, Fayette County.

Action by the State, on the relation of Joe Sabatino, against Robert A. Richards, constable, and the Fidelity & Casualty Company of New York as surety on his official bond to recover five dollars for each day during which each of the installments of relator's wages remained unreleased, wherein defendant interposed a demurrer.The trial court sustained the demurrer and certified to the Supreme Court of Appeals the points of law arising on the demurrer.

Affirmed in part; reversed in part.

Townsend & Townsend and J. V. Brennan, for plaintiff.Mahan, Bacon & White, for defendant.

Rose, Judge:

Joe Sabatino was an employee of the New River & Pocahontas Consolidated Coal Company.A judgment was rendered against him in favor of one Pelle for $303.75 on the 4th day of December, 1941, on which a writ of fieri facias was issued and returned nulla bona.Afterwards, under date December 22, 1941, a suggestee execution, as provided by chapter 67 of the Acts of the Legislature of 1939, was issued on this judgment, directed to Robert A. Richards, a constable, against the wages of Sabatino due or to become due within one year of its date.This writ was served on the employer January 5, 1942, the effect of which, under the act referred to, was to make the execution a lien on twenty per cent of all the wages of the employee due or to become due after its levy and within one year from its date, provided that the wages to be paid to the employee should not thereby be reduced below ten dollars per week.

On August 26, 1942, Sabatino, who was a husband, and a resident of this state, delivered to the constable an exemption schedule, as authorized by Code, 38-8-3, claiming all his wages then due as exempt from said execution, and demanded a release of his wages from the execution, which release was, and ever since has been, refused.The amount of Sabatino's wages sequestered by the execution was $42.20, which was, by the employer, deducted from his wages, and never has been paid to him.Like exemption schedules were delivered to the constable covering wages due on the seven following semi-monthly paydays, to and including December 14, 1942, which were similarly ignored, resulting in deductions from the employee's wages which were likewise retained and never paid to Sabatino.The execution, by the terms of the statute, was only effective against Sabatino's wages coming due within one year from its date.

By Code, 38-8-8, it is provided that: "* * * And any officer failing to release any money or property in his control which shall have been exempted, or failing to deliver the same if in his possession, to the debtor, his agent, attorney or spouse, upon request, shall forfeit to the debtor five dollars for each day such failure may continue, which forfeiture may be recovered from the officer and his sureties in an action upon his official bond in any court having jurisdiction.* * *". By Code, 38-5A-9, it is further provided that: A judgment debtor to whom money is due or to become due which would otherwise be subject to suggestion under this article may have the same exempted from levy in the manner and to the extent provided for by article eight * * * of this chapter.The exemption may be claimed for sums currently accruing but must be asserted anew as to any salary or wages which shall begin to accrue after the next payment date.Such exemption shall not be binding upon a suggestee unless and until a certificate of exemption or true copy thereof shall have been delivered to him."

On the 22d day of December, 1943, Sabatino instituted this action against the constable, Robert A. Richards, and The Fidelity & Casualty Company of New York, a corporation, as surety on his official bond, alleging in fuller detail the facts above recited, for the recovery of five dollars for each day during which each of the installments of his wages remained unreleased, amounting, in the aggregate, to $2,480.00.

The defendants interposed, (1) a written demurrer invoking the one-year statute of limitations; (2) a plea setting up the same statute of limitations; and (3) a plea of conditions performed.The trial court sustained the demurrer, and upon a joint motion of counsel certified to this Court the points of law arising on the demurrer as follows:

"FIRST: That the applicable period or statute of limitations in this action (an action to recover a statutory penalty under the provisions of Code Section 3904) is one year.

"SECOND: That said declaration shows on its face that plaintiff's cause of action, if any he had, accrued to him not later than December 14, 1942, and the said declaration and the original process, a part of the record herein, shows that this action was instituted December 22, 1943, and, therefore, that the same was barred by the applicable period or statute of limitations.

"THIRD: That said declaration, together with said process showing this action instituted December 22, 1943, a part of the record herein, shows on its face that this action is barred by the statute of limitations."

The statute of limitations can be interposed by demurrer in an action at law, provided the summons is made a part of the record by oyer, as was done in this case.Vencill v. Flynn Lumber Company, 94 W. Va. 396, 119 S. E. 164;Crawford's Adm'r. v. Turner's Adm'r., 67 W. Va. 564, 68 S. E. 179.

We have no statute of limitations specifically applying to actions to recover statutory penalties; but there is this applicable general provision in Code, 55-2-12: "Every personal action for which no limitation is otherwise prescribed shall be brought five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that, in case a party die, it can be brought by or against his representative, and if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued, and not after."In Gawthrop v. Fairmont Coal Co., 74 W. Va. 39, 81 S. E. 560, it was held that the one-year statute of limitations applies to an action for the recovery of the statutory penalty for mining coal within five feet of a division line.From the opinion in that case it seems clear that the same statute of limitations should be applied to statutory penalties in general, where no statute specifically provides otherwise.Assignability is a common practical test of the survivability of a cause of action."What is, and what is not, a cause of action personal in nature is frequently determined by the question whether it is or is...