Va. Howard Murray v. Price, (No. 7741)

• Decision Date: 12 December 1933
• Docket Number: (No. 7741)
• Citation: 114 W.Va. 425
• Court: West Virginia Supreme Court
• Parties: Virginia Howard Murray v. T. Brooke Price,Executor, etc., et al.

114 W.Va. 425

Virginia Howard Murray

v.T. Brooke Price, Executor, etc., et al.

(No. 7741)

Supreme Court of Appeals of West Virginia.

Submitted November 9, 1933.

Decided December 12, 1933.

1. Appeal and Error

A decree of a circuit court, sustaining a demurrer to a bill in chancery and dismissing it without prejudice to the right of the plaintiff to have the cause transfen^d to the law side of the court as provided by Code 56-4-11, is appealable under Code 58-5-1 (g).

2. Executors and Administrators

A divorced wife for whom monthly payments of money were provided in a written settlement between her and her former husband, the same to be made by him in his lifetime and out of his estate after his death, the said settlement having been approved and confirmed by the court, may maintain a bill in equity to determine her status as a creditor of the estate and have her rights adjudicated under such settlement and decree, her former husband having died without having complied with a covenant of the contract that he would carry life insurance in an amount more than sufficient to pay all of his debts so that his estate would stand debt free as a source for her monthly payments.

3. Parties

Generally, all persons who are materially interested in the subject matter of a suit, and who will be affected by the result thereof should be parties thereto.

Appeal from Circuit Court, Kanawha County.

Suit by Virginia Howard (now Murray) against T. Brooke Price and others, executors of the will of David C. Howard, deceased, and others. From a decree sustaining demurrers to, and dismissing plaintiff's original and amended bills, plaintiff appeals.

Reversed in part and remanded.

Poffenbarger & Poffenbarger, for appellant.

Price, Smith & Spilman and A. B. Hodges, for appellees.

Maxwell, President:

Virginia Howard (now Murray) instituted this suit in equity against the executors of, and the beneficiaries under, the will of David C. Howard, deceased, for the purpose of subjecting the decedent's estate to the payment of a contractual indebtedness. From a decree, sustaining demurrers to, and dismissing, plaintiff's original and amended bills, plaintiff obtained an appeal. Subsequently, defendants, by motion to dismiss the appeal, challenged the jurisdiction of this Court on the ground that the decree of the chancellor was not appealable. Logically, the question of jurisdiction must be considered first.

The scope of appellate jurisdiction of this Court emanates from the Constitution (West Virginia) Article VIII, Section 3, and Code 1931, 58-5-1, and specifically, in the instant cause, from that portion of subsection (g) of said section 1 which authorizes appeal '' In any case in chancery wherein there is a decree or order * * * adjudicating the principles of the cause.'' In Blackshere v. Blackshere, 111 W. Va. 213, 215, 161 S. E. 27, 28, is this statement: "Finality of decree, in the sense that all issues must be decided, is required before an appeal can be obtained in those instances which involve that portion of sub-section 7, which allows an appeal to any decree or order 'adjudicating the principles of the cause'." It is a general proposition that appellate jurisdiction begins only where the trial tribunal's jurisdiction ends. Shirey v. Musgrave, 29 W. Va. 131, 143, 11 S. E. 914.

The trial chancellor, in sustaining the demurrers, was of opinion that the plaintiff had shown ": no grounds of equity jurisdiction' \ and so dismissed the bills, '' without prejudice to the right of the plaintiff hereafter to have this cause transferred to the law side of this court, as provided by Section 11, Art. 4, Ch. 56 of the Code of West Virginia, for procedure therein as a law action, upon amended pleadings, as in said statute provided, in the case and event of an affirmance of this decree of dismissal on appeal therefrom, or the election of the plaintiff not to appeal therefrom or her inability to obtain such appeal." It is argued that plaintiff's right to have the cause transferred to the law side of the court as provided by Code, 56-4-11, renders the decree non-appealable. The pertinent portion of that statute reads:

"No case shall be dismissed simply because it was brought on the wrong side of the court, but whenever it shall appear that a plaintiff has proceeded at law when he should have proceeded in equity, or in equity when he should have proceded at law, the court shall direct a transfer to the proper forum, and shall order such change in, or amendment of, the pleadings as may be necessary to conform them to the proper practice; and, without such direction, any party to the suit shall have the right, at any stage of the cause, to amend his pleadings so as to obviate the objection that his suit or action was not brought on the right side of the court."

Our statute was copied from the Virginia statute (Va. Code, 1919, sec. 6084). The question considered herein was first decided in Virginia in Hodges v. Thornton, 138 Va. 112, 120 S. E. 865, 868 (1924), wherein the court, in determining whether a decree which transferred a cause to the law side of the court was appealable, stated: "We think that it was a final decree, in that it denied the whole of the relief prayed in the bill and in effect dismissed the bill and remanded the plaintiffs to another forum, namely, the law side of the court. But if it was not a final decree, it certainly adjudicated the principles involved, and hence was an appealable decree." In Colvin v. Butler, (Va.) 143 S. E. 333, 334, decided in 1928, a suit was transferred to the law side, where, upon proper pleadings, the action went to trial before a jury; but, after examination of the plaintiff, the court of its own motion transferred the case back to the chancery side, to which action the defendants objected on the ground that upon re-transfer of the litigation from the law side to the chancery docket, it "was met with a finding to the effect that equity had no jurisdiction, which finding was final and amounted to an adjudication of that proposition." The appellate court, discussing the quoted portion of the HodgesThornton case, stated (at page 334): "If this be construed to definitely state that the order first transferring the cause was technically speaking a final decree, then that statement was dictum, and not necessary in any decision of the matter then in judgment. All that the court had to decide was that the decree under review was an appealable decree, and it is in fact manifest that the court did not desire to commit itself definitely further." The court continued: "We should, of course, in dealing with a statute, follow its purpose whenever it is possible to do so, and it is likewise manifest that it would here be in the interest of justice to give to it a liberal, and not a technical, construction. This can readily be done by dealing with this entire record as part and parcel of one transaction. If we treat the decree as appealable and not final, then it may still be brought under review. Such error as was committed when the cause was transferred from equity to law was corrected when it was transferred back from law to equity. This we hold is reasonable. It does no violence to the language of the statute, and it does what should be done whenever it is possible to do it. It gives to the plaintiff one fair trial, something to which he is entitled in good conscience and under the statute. If this he not true, then a statute designed as a buckler becomes a sword."

The reason for the adoption of the Virginia statute as explained by Judge Martin P. Burks, one of the Code (1919) Revisors, was to "give the advocates of code procedure full opportunity to develop the merits of the system, and if they proved more satisfactory than the present system the transition would be much easier than by a complete substitution of one for the other at the present time." 5 Va. Law Reg. (N. S.) 97, 120. The language of the statute itself mirrors the legislative intent to adhere to the prevailing distinction between courts of equity and courts of law. Hence, consideration of cases based on code practice is unnecessary.

In the cause at bar, there has been no transfer. The decree merely reserves to plaintiff her statutory procedural right upon the happening of any of the following events: (1) inability to obtain an appeal, (2) affirmance of the decree on appeal, or (3) election not to appeal. But, the dismissal of the bills stands determinate and conclusive. It adjudicates the principles of the cause in so far as jurisdiction is concerned. There is pronouncement of no equity. To compel the plaintiff to have her rights determined in a court of law before ascertaining whether the chancellor erred in denying equity jurisdiction not only would work hardship upon her, but would tend, in many instances, to occasion and to prolong useless litigation, and would defeat the manifest purpose of the statute....