Wright v. Wright.
| Citation | 78 W.Va. 57 |
| Court | Supreme Court of West Virginia |
| Decision Date | 28 March 1916 |
| Parties | Wright v. Wright. |
1. Habeas Corpus Right to Remedy Certiorari Insane Persons.
The remedy by certiorari given by section 2, of chapter 110, of the Code, if available in case of one erroneously adjudged a lunatic upon an inquisition by a justice, should be construed as cumulative, and not exclusive of the common law remedy by writ of habeas corpus, and as given by section 1, of chapter 111, serial section 4524, Code 1913. (p. 59).
2. Same Inquisition of Lunacy Conclusiveness of Finding.
The finding of a justice upon an inquisition of lunacy is not conclusive of the fact of insanity, upon a subsequent inquiry into the same fact by the circuit court upon a writ of habeas corpus. (p. 60).
3. Same.
In such cases the finding of the justice upon such an inquisition at most constitutes but prima facie or presumptive evidence of the fact of insanity, and is not res adjudicata of that fact when relied on in bar of the right to have that fact again inquired into upon a writ of habeas corpus. (p. 63).
Error to Circuit Court, Mason County.
Action by John W. Wright against Charles N. Wright. Judgment for plaintiff, and defendant brings error.
Affirmed.
B. H. Blagg and John L. Whitten, for plaintiff in error.
Rankin Wiley, for defendant in error.
Petitioner, seventy four years of age, alleges in his petition for a writ of habeas corpus ad subjiciendum that he is unlawfully restrained of his liberty by defendant, under bond, upon a charge of lunacy; that the charge is untrue, that he is sound in mind, and ought to be released from the custody of defendant.
Respondent in his return to the writ answers, that on the day of September, 1913, petitioner was brought before a justice on the charge that he was insane, and that upon a full hearing thereon, and the evidence produced, petitioner was found by the justice to be insane, and that by an order then made he was placed by the justice in the care and custody of respondent, upon his executing a bond in the penalty of one thousand dollars, conditioned according to law.
Respondent also denies that petitioner is capable of taking care of and managing his farm and farming interests, but that on the contrary he is suffering his property to go to waste, and is endeavoring to sell and dispose of the same at a sacrifice; that by reason of his age, seventy four years, and infirmities incident thereto, petitioner's mind has become greatly impaired, and to such an extent that he is now insane and incapable of transacting business and taking care of himself, wherefore he alleges the judgment of the justice was proper, was pronounced after full investigation and upon evidence duly taken in the proceedings before him, and that it ought to be sustained, observed and respected by the court. And the prayer of his return is that the writ be discharged.
Upon a full hearing before the court upon the writ and return and evidence taken on behalf of both parties, the court found that petitioner is not insane, but is sane and capable of transacting business, and on October 22, 1913, pronounced the judgment complained of that the order of the justice of September, 1913, be revoked, set aside and annulled and that petitioner be discharged from the custody of defendant and from the order of said justice.
Section 9, chapter 58, serial section 3334, Code 1913, under which the proceedings before the justice were had, authorizes any justice who shall suspect any person in his county to be a lunatic, to issue his warrant ordering such person to be brought before him, and provides that he mall then inquire whether such person be a lunatic, and for that purpose may summon a physician and any other witnesses, and that in addition to any other questions, he may propound certain specified questions as may be applicable to the case.
And section 10, of the same chapter, then says: "If said justice decide that the person is a lunatic, and ought to be confined in a hospital and ascertain that he is a citizen of this State, then unless some person (to whom the justice in his discretion may deliver the lunatic) will give bond with sufficient security, to be approved by said justice, payable to the State, with condition to restrain and take proper care of such lunatic, until the cause of confinement shall cease, or the lunatic is delivered to the sheriff of the county, to be proceeded with according to law, the justice shall order him to be removed to the nearest hospital and received if there be room therein, and if not, to the other.''
And section 11 says: "The interrogatories to the witnesses and the answers thereto shall be in writing, and, together with a written statement by the justice of any matter known to him as to the fact of insanity, shall be transmitted by him with the order.''
It was under said section 9 that respondent gave the bond and was given the care and custody of petitioner, and of which complaint is made in the petition for the writ.
The first point of error is that the circuit court was without jurisdiction, upon a writ of habeas corpus, to review the judgment or finding of the justice. It is conceded that the statute makes no provision for an appeal in such cases; but it is contended that complete and adequate remedy at law is given by certiorari, as provided by section 2, chapter 110, serial section 4519, Code 1913, and that a writ of habeas corpus cannot be made to perform the functions of a writ of error to review the judgment of the justice.
A proper answer to this proposition involves an inquiry into the nature and effect of the proceeding before the justice under said section 9. Certainly it is not a suit or proceeding inter partes, or one in which any rights of person or property are involved other than the individual liberty of the person accused of lunacy. It is nothing more than an inquisition into the fact of lunacy, instituted by the justice for the purposes of the statute, and this court has decided that under this section a justice has jurisdiction only to determine that a person is insane for the purpose of committing him to the hospital or to the custody of some individual under bond, and could not make a finding of insanity for the purpose of appointing a committee. Karnes v. Johnston, 58 W. Va. 595, 52 S. E. 658.
Conceding a remedy by certiorari, under section 2, of chapter 110, of the Code, the inquiry of the court would be limited of course to the record as made in the justice's court. Dryden v. Swinburne, 20 W. Va. 102; Bee v. Seaman, 36 W. Va. 381.
If this remedy by certiorari exists, it should be regarded as cumulative only of the great common law remedy by writ of habeas corpus. As has been frequently said, this is the great writ of liberty, and is available by our statute, section 1, of chapter 111, serial section 4524, whenever one is unlawfully restrained of his liberty. Lance v. McCoy, 34 W. Va. 416, 421. By section 6, of said chapter 111, the court or the judge thereof in vacation has jurisdiction to...
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State Ex Rel. Nutter v. Mace, 9996.
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