State ex rel. Shamblin v. Dostert
| Decision Date | 12 June 1979 |
| Docket Number | No. 14468,14468 |
| Citation | 163 W.Va. 361,255 S.E.2d 911 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. J. W. SHAMBLIN v. Hon. Pierre E. DOSTERT, Judge, etc. |
Syllabus by the Court
1. W.Va.Code, 38-5-1 (1923) provides for issuance of a summons against an execution debtor to compel his appearance before a commissioner to answer interrogatories in aid of execution either in the county from which the execution issued or the county of the execution debtor's residence, whichever location the execution creditor elects. Pursuant to W.Va.Code, 38-5-2 (1923) the summons shall be directed to an officer of the county in which the commissioner before whom it is returnable resides for service and shall be served in that county; however, if such service does not reach the execution debtor, the summons may be forwarded to another county where successful service can be anticipated, and the officers of that county shall exert their best efforts to serve the process.
2. W.Va.const., art. 8 § 1, W.Va.Const., art. 8 § 3, and W.Va.Const., art. 8 § 6 when read together provide an orderly and exclusive system by which errors of circuit courts may be corrected only by the West Virginia Supreme Court of Appeals and not by other circuit courts. One circuit court may not directly or indirectly interfere with the orders of another circuit court unless specifically provided by statute or civil rule regardless of how erroneous such orders may be.
J. M. Tully, Summersville, for relator.
Radosh & Askin and Jerome Radosh, Martinsburg, for respondent.
In this original proceeding the petitioner, J. W. Shamblin, seeks to prohibit the respondent judge of the Circuit Court of Berkeley County from interfering with service of the lawful process of the Circuit Court of Nicholas County. We can conceive of no power by which one circuit court may interfere with the process or orders of another circuit court regardless of how erroneous or imperfect those orders or process may be; therefore, we award the writ.
The petitioner, J. W. Shamblin, obtained a valid money judgment in the Circuit Court of Nicholas County (hereinafter the Nicholas Court) against Tri-County Contracting Company, a corporation located in Berkeley County. A writ of execution on this judgment was issued by the Clerk of the Nicholas Court and sent to the Sheriff of Berkeley County who, after service, filed the return stating "No property found." To aid the writ of execution, a summons to answer interrogatories before a commissioner in Nicholas County was served upon M. V. McFillan, president of Tri-County Contracting Company, in Berkeley County but Mr. McFillan did not appear. The Commissioner in Nicholas County then directed an attachment for the body of Mr. McFillan to the Sheriff of Berkeley County who refused to execute the Nicholas County attachment and sought the aid of the Circuit Court of Berkeley County (hereinafter the Berkeley Court). The respondent judge of the Berkeley Court by letter to the Judge of the Nicholas Court offered to appoint a commissioner in Berkeley County to propound the interrogatories to Mr. McFillan. The Nicholas Court, apparently refusing the offer, issued an order on 26 September 1978 to the Sheriff of Berkeley County to show cause why he should not be held in contempt for refusal to execute the process of the Nicholas Court. A further order was entered on 5 January 1979 requiring the Sheriff of Berkeley County to appear on 13 February 1979 to show cause on the contempt issue; however, on 22 January 1979 the respondent Judge of the Berkeley Court entered an order enjoining the Sheriff of Berkeley County both from executing the body attachment and appearing in Nicholas County to answer the contempt charge. The petitioner contends that the respondent Berkeley Court's action was without jurisdiction. We agree.
The controversy in this case centers around W.Va.Code, 38-5-1 (1923) and W.Va.Code, 38-5-2 (1923). Code, 38-5-1 provides:
To ascertain the estate on which a writ of fieri facias issued by any court of record, or an execution issued by a justice of the peace, is a lien, and to ascertain any real estate in or out of this State to which a debtor named in such fieri facias or execution is entitled, upon application of the execution creditor, the clerk of the court from which the execution issued . . . shall issue a summons against the execution debtor, or any officer of a corporation execution debtor having an office in this State . . . requiring the execution debtor to appear before a commissioner in chancery of the county from which the summons issued, or, if the execution creditor so directs, before a commissioner in chancery of the county where such execution debtor resides, such commissioner and his county to be named in the summons . . . such appearance to be made at a time and place to be designated therein, to answer upon oath such questions as shall...
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