Thacker v. Ferguson, (No. 9654)
| Decision Date | 14 November 1944 |
| Docket Number | (No. 9654) |
| Citation | 127 W.Va. 177 |
| Court | West Virginia Supreme Court |
| Parties | Vilas Thacker v. C. W. Ferguson, Judge |
In a suit in equity by a wife for separate maintenance, under Section 29 of Chapter 35, Acts of the Legislature, 1935, the requirements of Code, 48-2-13, apply as to allowances to enable her to carry on her suit in the trial court, and upon appeal should one be taken.
An allowance to a wife to enable her to prosecute an appeal to this Court, from a decree of the circuit court against her, in a suit for separate maintenance, can only be made upon reasonable notice to the defendant husband, as required in suits for divorce under Code, 48-2-13. The mere presence in court of counsel of record for the husband, at the time the motion for such allowance is made, does not amount to the reasonable notice required by the statute; and where such notice is not given, a circuit court exceeds its legitimate powers when it makes any such allowance, and this Court will prohibit the enforcement thereof.
"The fact that where a court exceeds its powers in the trial or hearing of an action or suit, its order or decree may be corrected on writ of error or appeal after a final judgment or decree has been entered, does not in all cases preclude resort to the writ of prohibition." White Sulphur Springs, Inc. v. Ripley, 124 W. Va. 486.
Original proceeding by Vilas Thacker against C. W. Ferguson, Judge, for a writ of prohibition to prevent enforcement of an order making an allowance to plaintiff's wife to enable her to prosecute an appeal from an adverse decree in a suit for separate maintenance.
Writ awarded.
J. M. Jordan, for petitioner. F. F. Scaggs, for respondent.
Proceeding under Section 29, Chapter 35, Acts of the Legislature, 1935, (Michie's 1943 Code, 48-2-29), Jean Vinson Thacker instituted her suit in equity for separate maintenance against her husband, Vilas Thacker, in the Circuit Court of Wayne County. A hearing of the case was had, evidence taken, and the cause prosecuted to a final decree, entered on July 27, 1943, by which the plaintiff therein was denied relief and her suit dismissed. In the decree of dismissal, provision was made for the costs of prosecuting the case, and for the payment of attorney's fees to counsel for services in the Circuit Court. The plaintiff in said cause undertook to apply for an appeal from the decree against her, but encountered difficulties in securing a transcript of the testimony taken on the hearing, occasioned by the death of the court reporter who took the stenographic notes of the testimony. Finally these difficulties were overcome, and the plaintiff filed her petition for appeal in this Court on March 27, 1944, and, therefore, her petition was filed within the time prescribed by statute. Said petition was refused by this Court on April 17, 1944.
In this situation, Jean Vinson Thacker applied to the Circuit Court of Wayne County for an allowance for costs and attorney's fees to enable her to prosecute her appeal to this Court. This she did on March 27, 1944, the same day her petition for an appeal was filed here. The decision of the Circuit Court on the application for an allowance was on March 27, 1944, but may not have been entered on the records until a later date. This order clearly states the action taken on the matter before the court, and we quote therefrom: "On this March 27, 1944, this cause again came before the Court, and thereupon, the plaintiff, by F. F. Scaggs, her Attorney, in the presence of Counsel for defendant, moved the Court for an allowance of Attorney fees and Court costs to enable her to prosecute her application for an appeal and supersedeas in the Supreme Court of this State to a judgment of this Court rendered in said cause on July 27, 1943, which motion the Court sustained and fixed counsel fees in the sum of $75.00." Then followed an itemized statement of costs, amounting to $38.44, incurred by the plaintiff in and about such attempted appeal, and the court then continued: "It is, therefore, considered by the Court that the Defendant, Vilas Thacker, pay unto F. F. Scaggs, Attorney for plaintiff, the above attorney fees and costs aggregating $113.44, and which payment shall be made by the said defendant within ten days from the entry of this order."
Vilas Thacker, the defendant in that suit, and the relator here, sought to have the order of March 27, 1944, set aside. Through his counsel, he notified counsel for Jean Vinson Thacker that he would, on April 21, 1944, move the Circuit Court of Wayne County to set aside said order, and there was an appearance to and a hearing on this motion. On July 24, 1944, the Circuit Court overruled the motion, and reaffirmed its order of March 27, 1944, and in that order took occasion to state facts and reasons for its action, which will be hereinafter discussed. On September 6, 1944, the relator filed in this Court his petition for a writ of prohibition, seeking to prohibit the Judge of the Circuit Court of Wayne County, and Jean Vinson Thacker, from proceeding to enforcement payment of the allowance made by the order aforesaid, and on September 11, 1944, we awarded a rule requiring the respondent to show cause why the writ prayed for should not be awarded.
The position of the relator, as set up in his petition, is, first, that the final decree in the original suit of Jean Vinson Thacker against Vilas Thacker having been entered on July 27, 1943, and no appeal having been granted therefrom, no suit was pending on March 27, 1944, when the application aforesaid for costs and attorney's fees was filed, and therefore, the Circuit Court was without jurisdiction to enter any order in said cause; and, second, that, in any event, only by service of the notice required by Code, 48-2-13, had the said Circuit Court the right and jurisdiction to make the allowance applied for and that the required notice was not given. The facts on which these legal positions are taken are not disputed, and a clear question of law is presented.
The only appearance in the case is in the name of the Judge of the Circuit Court of Wayne County, and he files a demurrer and answer to relator's petition. In the demurrer it is contended, in general, that the petition does not state a case warranting the writ; that it is deceptive and does not reflect the facts; and, specifically, that petitioner's remedy, if any, was by appeal. His position, as set up in his answer, is, briefly, this: First, a suit was pending on March 27, 1944, when the application for costs and attorney's fees was made; second, that counsel for Vilas Thacker, the relator herein, was present in court at the time the motion for costs and attorney's fees was made, and that his presence amounted to notice to the relator; and, third, that subsequent to the entry of the order complained of, the relator, by his counsel, gave notice of his intention to move the Circuit Court to set aside said order, and actually made such motion on April 21, 1944.
The Circuit Court of Wayne County had jurisdiction of the subject matter and the parties in the separate maintenance suit, and we do not think it had lost that jurisdiction on March 27, 1944, when the application for an allowance for costs and attorney's fees was made. The final decree in that suit was entered on July 27, 1943, and an application for an appeal could be made on March 27, 1944, and was made on that day. Code, 2-2-3, provides that "The time within which an act is to be done shall be computed by excluding the first day and including the last; or if the last be Sunday, it shall also be excluded; but this provision shall not be deemed to change any rule of law applicable to bills of exchange, or negotiable notes." Therefore, the 27th of July, 1943, was excluded, which would permit including March 27, 1944, and it cannot be said that, at the time when the motion for costs and attorney's...
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