White Sulphur Springs Inc v. Jarrett, No. 9353.

• Court: Supreme Court of West Virginia
• Writing for the Court: FOX, President
• Citation: 20 S.E.2d 794
• Parties: WHITE SULPHUR SPRINGS, Inc. v. JARRETT, Judge, et al.
• Docket Number: No. 9353.
• Decision Date: 09 June 1942

20 S.E.2d 794

WHITE SULPHUR SPRINGS, Inc.
v.
JARRETT, Judge, et al.

No. 9353.

Supreme Court of Appeals of West Virginia.

June 9, 1942.

Syllabus by the Court.

1. 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. 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. 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. 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 Eliz-

[20 S.E.2d 795]

abeth T. Ripley had commenced against the petitioner, wherein the respondents filed a demurrer.

Writ awarded.

Fitzpatrick, Strickling & Marshall, of Huntington, for petitioner.

John L. Detch, of East Rainelle, 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 insane 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 Sul phur 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,...