Ewing v. Winters, 39 W. Va. 489

Ewing v. Winters

39 W. Va. 489 | W. Va. | 1894

Holt, Judge :

This is an appeal which came to this Court from a decree *490of the Circuit Court of Marshall county rendered on the 30th day of March, 1889. The cause was argued and submitted on -June 6,1890, and decided June 21,1890. See case of Ewing v. Winters, 34 W. Va. 23 (11 S. E. Rep. 718) and record therein. The two decrees of the Circuit Court— one of April 5,1888,andone of June 23,1888 — were reversed and annulled, and the final decree of December 31, 1888, was likewise reversed, except so much thereof as confirmed the report of sale of the laud, and directed a deed and possession and costs, and the cause was remanded to the Circuit Court for further proceedings. On the 16th day of April, 1894, James Winters filed his petition in this Court alleging, that within the last five mouths preceding that day he became twenty-one years of age, and that he and his brothers and sisters, who are still 'infants, were parties defendant iu said two causes, and are the ones who by this Court were adjudged to take a remainder in fee in the real estate called the “ Old Homestead ” under the will of James Winters. He complains on various grounds of the sale of his estate in the remainder and of the substitution of the proceeds of sale in the place of such estate, and prays that under section 7, c. 132 of the Code he may be permitted to show cause against such decree.

In Jackson v. Turner (1834) 5 Leigh, 119, it was held error to subject lands of infants to sale in certain cases and not give them a day to show cause against the decree after their attainment to full ago. To obviate such error section 7 was passed iu the vevisal of 1849, which reserves the right to the infant in a proper case within six months after attaining the age of twenty one years, to show such cause against the decree without such right being reserved. In such cases the infant may proceed by original bill, bill of review or petition to rehear according to the status of the case. See 1 Daniell, Ch. Pr. (6th Am. Ed.) top page 174. If this proceeding is to be regarded as One taken or asked to be taken in a pending cause, it can not be entertained now in this Court, because the cause of Ewing v. Winters and the cause of Rine v. Winters, consolidated, were finally decided here on the 21st day of June, 1890, and remanded to the Circuit Court of Marshall county for further proceed*491ings, where petitioner says the consolidated cause is now pending. If it is to be regarded as an original proceeding taken or asked to be taken in this Court, it can not be entertained or petitioner’s prayer granted, because this is not a court of original jurisdiction. Nor is original jurisdiction in such cases anywhere given expressly or by necessary implication. The remedy, if any, must be in some other court. Petitioner’s prayer is therefore refused.