State Ex Rel. Nutter v. Mace, 9996.

CourtSupreme Court of West Virginia
Citation44 S.E.2d 851
Docket NumberNo. 9996.,9996.
PartiesSTATE ex rel. NUTTER et al. v. MACE.
Decision Date04 November 1947

44 S.E.2d 851

STATE ex rel. NUTTER et al.
v.
MACE.

No. 9996.

Supreme Court of Appeals of West Virginia.

Nov. 4, 1947.


[44 S.E.2d 851]
Syllabus by the Court.

1. A writ of habeas corpus is not a substitute for a writ or error or other appellate process. Irregularities in process or errors in the proceeding are not reached by a writ of habeas corpus. But if the process or proceeding under which the complaining party is confined or restrained is void a writ of habeas corpus is the proper remedy to invoke.

2. An appointment of a committee for an insane or mentally incompetent person made by the county court of the county in which such person is temporarily living, and in which he is served with five days' notice of such appointment is not void for lack of jurisdiction of such court, although the lunatic or incompetent has no residence or property in the county where the appointment is made.

FOX, P., and RILEY, J., dissenting.

Habeas corpus ad subjiciendum proceeding by the State, on the relation of Selina Nutter and another, against Ruth Mace, for release from custody and control of committee appointed for petitioners.

Writ dismissed and petitioners remanded to custody of respondent.

A. G. Mathews, of Grantsville, for relators.

Donald F. Black, of Parkersburg, and Wm. S. Ryan, of Spencer, for respondent.

LOVINS, Judge.

On the petition of Nancy Nutter and Selina Nutter this Court awarded a writ of habeas corpus ad subjiciendum directed to Ruth Mace, who, on August 21, 1947, had been appointed committee for petitioners by the County Court of Wood County, West Virginia.

Petitioners are sisters, aged eighty-one and seventy-nine years, respectively, and resided on a farm jointly owned by them, situated in an isolated section of Roane County, West Virginia. Their residence is located approximately three-fourths of a mile from a public road, and is without modern conveniences relative to heating, lighting, water and toilet facilities.

[44 S.E.2d 852]

Nancy Nutter is suffering from arthritis deformans. At the time she was taken to Wood County she was suffering from a vitamin deficiency or malnutrition, and is usually confined to her bed, though on occasions she uses a wheel chair. Selina Nutter is afflicted with arthritis, has suffered a fracture of one of her lower limbs, is lame and uses a cane, but she is partially able to attend to her personal needs.

A brother and sister, aged seventy-four and sixty-six years, respectively, reside near petitioners and are their closest relatives. There are also a number of nephews, nieces, cousins and other relatives by marriage residing in Roane and Wood Counties.

In the month of July, 1947, petitioners directed an attorney to prepare a deed conveying their land to the son and daughter of one of their nephews and to prepare a will by which each of them bequeathed their personal property to the same persons. The proposed grantees and legatees, as a consideration for the conveyance and as an inducement for making the will, were to support, maintain and care for petitioners for the remainder of their lives.

Under date of July 16, 1947, the brother and sister of petitioners notified them that, on August 5, 1947, they would move the County Court of Roane County to appoint a committee for petitioners. Thereafter the attorney who was to prepare the deed and wills, in company with a physician, visited petitioners at their home on August 1, 1947. Shortly thereafter the brother, sister, and respondent herein induced petitioners to go to Spencer, the county seat of Roane County, where they remained for a short time in a hospital. They left the hospital in Spencer and went to Wood County. The exact time of their arrival in Wood County is not shown, but it is clear that they arrived on or about August 10, 1947. Upon their arrival they were taken to Vienna, in Wood County, where they were placed in the "Marshall Rest Home". The evidence is in conflict whether petitioners willingly left Roane County and went to Wood County or whether they went contrary to their wishes. However, it is clear that if petitioners went to Wood County willingly, they did so with the understanding that they were going there for the purpose of consulting a physician in whom they had great confidence.

While they were in the rest home a person was sent by one of their cousins to remove them therefrom to their home in Roane County, but that effort was unsuccessful. Shortly after that attempt, a notice was served on petitioners by Ruth Mace, the respondent herein, that on the 21st day of August, 1947, at ten o'clock a. m., the said Ruth Mace would move the County Court of Wood County to appoint her as committee for petitioners. The notice was served on petitioners in person on August 16, 1947, according to the return of service signed and sworn to by Ruth Mace.

The County Court of Wood County, being in regular session on the return day of the notice, entertained a motion by the brother and sister of petitioners to appoint a committee for them. No objection being made, and petitioners making no appearance, the motion was sustained, and Ruth Mace was appointed their committee. Ruth Mace entered into a bond in the penalty of $5,000, and appraisers were appointed, who appraised the property of petitioners in Wood County and in Roane County. On September 8, 1947, the report of the appraisers was made, from which it appears that Selina Nutter is the owner of real and personal property in the amount of $16,783.58 and Nancy Nutter is the owner of real and personal property amounting to $4,509.46.

The next step in the proceeding before the County Court of Wood County occurred on September 9, 1947, at a regular session of said court held on that day. The petitioners having theretofore given notice of their intention so to do, appeared by counsel and moved the court to set aside the order of appointment entered on August 21 and to declare the appointment of respondent void on the grounds: (1) That petitioners are residents of Roane County and have no property or residence in Wood County; (2) that petitioners were surreptitiously taken from Roane County to Wood County against their will; (3) that their counsel had been denied the opportunity of consulting petitioners since

[44 S.E.2d 853]

they had been placed in the Marshall Rest Home; and (4) that the order of August 21, 1947, showed no finding of mental incompetency. On the hearing of the motion counsel for respondent and petitioners stipulated that petitioners were born in Roane County; had lived therein all their lives until taken to the "Marshall Rest Home" on or about August 10, 1947; and that the order entered on August 21, 1947, should be amended to show that the County Court of Wood County, prior to the appointment of the committee, had affirmatively found that petitioners were incompetent. Upon consideration of said motion, it was overruled.

On motion of counsel for respondent, made on September 10, 1947, the bond of $5,000 theretofore given by respondent was increased to $25,000. Thereafter petitioners were granted a writ of habeas corpus ad subjiciendum by this Court, as hereinabove stated.

In this proceeding the first question to be discussed and determined relates to the application and effect of a writ of habeas corpus. If confinement or restraint of the petitioners is imposed by virtue of an order, finding or judgment, made or entered by a court having competent jurisdiction of the subject matter in general, valid on its face, although voidable or erroneous, a person so confined or restrained will not be discharged therefrom by a writ of habeas corpus. But the writ may be used if the process or proceeding is void. Ex parte Evans, 42 W.Va. 242, 24 S.E. 888; see State v. Plants, 25 W.Va. 119, 52 Am. Rep. 211; Ex parte Mooney, 26 W.Va. 36, 53 Am.Rep. 59; Ex parte Page, 77 W.Va. 467, 87 S.E. 849; Ex parte Veltri, 83 W. Va. 226, 98 S.E. 146; Ex parte Hickey, 93 W.Va. 411, 116 S.E. 765;. Ex parte Kirby, 100 W.Va. 70, 77, 130 S.E. 86; Shad v. McNinch, 103 W.Va. 44, 136 S.E. 865; Browsky v. Perdue, 105 W.Va. 527, 143 S.E. 304; Slater v. Melton, 119 W;Va. 259, 193 S.E. 185.

It may be said that there are apparent exceptions to the foregoing rule as shown by some of the opinions of this Court. See Schutte v. Schutte, 86 W.Va. 701, 104 S.E. 108, 19 A.L.R. 711; Ex parte Samuel and Slivoo, 82 W.Va. 486, 96 S.E. 95; and Wright v. Wright, 78 W.Va. 57, 88 S.E. 606. In the Schutte case this Court discharged a petitioner from restraint occasioned by a finding of a lunacy commission. In Wright v. Wright, supra, the petitioner was discharged from restraint caused by the finding of a justice of the peace upon an inquisition of lunacy. In Ex parte Samuel and Slivoo, supra, this Court discharged petitioners on the ground that no competent evidence was introduced in a preliminary hearing on a criminal charge. It appears that this Court acted in...

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