White Sulphur Springs INC. v. Ripley., (No. 9353)

• Citation: 124 W.Va. 486
• Decision Date: 09 June 1942
• Docket Number: (No. 9353)
• Court: Supreme Court of West Virginia
• Parties: White Sulphur Springs, Inc. v. Elizabeth T. Ripley et al.

124 W.Va. 486

White Sulphur Springs, Inc.

v.Elizabeth T. Ripley et al.

(No. 9353)

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1942.

Decided June 9, 1942.

1. Prohibition

Under Code, 53-1-1, a trial court having jurisdiction of a cause of action and of the parties thereto, may, nevertheless, be prohibited from further proceeding therein, when in so doing it exceeds its legitimate powers.

2. Prohibition

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.

3. Dismissal and Nonsuit

A suit or action dismissed under Code, 56-4-7, may be reinstated under Code, 56-8-12, but good, cause therefor must be shown.

4. Dismissal and Nonsuit

A trial court, upon a motion to reinstate a suit or action, under Code, 56-8-12, is vested with a sound discretion with respect thereto; but that discretion can only operate on evidence tending to establish facts upon which a finding can be based.

Prohibition proceeding by White Sulphur Springs, Inc., against Mark L. Jarrett, as Judge of the Circuit Court of Greenbrier County, and Elizabeth T. Ripley to prohibit further proceedings in an action which Elizabeth T. Ripley had commenced against the petitioner, wherein the respondents filed a demurrer.

Writ awarded.

Fitzpatrick, Strickling & Marshall, for petitioner. John L. Detch, for respondents.

Fox, President:

Elizabeth Ripley, a resident of the Commonwealth of Massachusetts, sustained injuries while a guest at the White Sulphur Springs Hotel on February 27, 1940; and, alleging negligence on the part of the Hotel Company, instituted an action of trespass on the case, in the Circuit Court of Greenbrier County, against White Sulphur Springs, Inc., on February 27, 1941, and process therein was issued returnable to April Rules following. No declaration was filed at April Rules, nor at May, June or July Rules following. Proceeding under Code, 56-4-7, the Clerk of the Circuit Court of said county dismissed the action at September Rules, 1941. Acting under Code, 56-8-12, the plaintiff in said action, on December 16, 1941, moved the circuit court to reinstate the same, and filed in support of such motion three affidavits, to be presently considered, and evidence was taken on the motion. The court then required plaintiff to file her declaration, which was done, and thereafter it sustained the motion to reinstate the action. Thereafter, White Sulphur Springs, Inc., filed in this Court its petition against Elizabeth T. Ripley and Mark L. Jarrett, Judge of the Circuit Court of Greenbrier County, praying for a writ of prohibition against further proceeding in such action on the part of either. A joint demurrer was filed by Elizabeth T. Ripley and Mark L. Jarrett, and Jarrett, as Judge of the Circuit Court of Greenbrier County, filed his separate answer. A paper, called an answer, is filed in the proceeding by Lawrence M. Ripley, next friend for Elizabeth T. Ripley, who purports to file the said answer for and on behalf of an in- sane person. Any irregularity in the filing of this answer was waived by White Sulphur Springs, Inc., by its counsel, in argument at the bar of the court; and so it is that the matter comes on to be heard on the petition, the demurrer, the answers aforesaid, and the evidence taken in the court below.

It will be noted that the action instituted by Elizabeth T. Ripley against White Sulphur Springs, Inc., would have become barred by the statute of limitations, (Code, 55-2-12) on the day following the institution of her suit on February 27, 1941, and, therefore, if her action is not reinstated, she is, under our statute, forever barred from further prosecuting her claim. This is not stated because of any particular bearing upon the construction of the statute, but as indicating the results which may flow therefrom, and as having in some way influenced some of the decisions which have been rendered on the point at issue herein.

Code, 56-4-7, provides, "If three rules elapse after the rules at which the process is returned executed as to any one or more of the defendants, without the declaration or bill being filed, the clerk shall enter the suit dismissed, although none of the defendants have appeared." It is not contended that the declaration was filed within the required period, or that there was an appearance in the case on the part of the defendant. However, plaintiff seeks to have her action reinstated under Code, 56-8-12, which provides that, "Any court may, on motion, reinstate on the trial docket of the court any case dismissed, and set aside any nonsuit that may be entered by reason of the nonappearance of the plaintiff, within three terms after the order of dismissal shall have been made, or order of nonsuit entered; but any such order of reinstatement shall not be entered until the accrued costs in such case shall have been paid." It will be observed that this section provides only that the court may reinstate a dismissed action under specified limitations, and does not, in terms, require that cause be shown therefor. However, the uniform rulings of this Court have been that under said section good cause must be shown before an action can be reinstated. In Higgs v. Cunningham, 71 W. Va. 674, 77 S. E. 273, 274, Judge Robinson, speaking for the Court said: "This statute does not dispense with the showing of good cause the showing of excuse for the neglect that has disturbed orderly legal procedure. One can not refuse to prosecute or defend and then ask to do so without showing why he thus acts so inconsistently." See also George v. Kittle, 102 W. Va. 613, 135 S. E. 900; Murray v. Roberts, 117 W. Va. 44, 48, 183 S. E. 688. This matter has been treated by the Virginia courts under a statute not fundamentally different from our own. In Jennings v. Pocahontas Consolidated Collieries Company, 114 Va. 213, 76 S. E. 298, it was held that a case dismissed by the clerk for failure to file declaration within time, can be reinstated only upon a showing of sufficient legal reason, and will not be reinstated where the cause preventing the filing could have been foreseen and obviated, especially where to reinstate would deprive defendant of the defense of limitation. In Trent v. Clinch-field Coal Corporation, 119 Va. 812, 89 S. E. 923, it was held that where the error is apparent upon the face of the record in respect to a rule against the plaintiff to file a declaration was corrected and the plaintiff nonsuited, his motion of reinstatement of the cause on the docket would be denied if the reinstatement would deprive the defendant of the defense of limitation that he would otherwise have. See also Wickham v. Green, 111 Va. 199, 68 S. E. 259; Burke's Pleading & Practice, 3rd Ed. page 109.

The question is therefore presented whether good cause was shown for the order of the court in...