193 S.E. 444 | W. Va. | 1937
The decision in this case depends upon whether or not an action instituted before a justice of the peace, in which an attachment has been issued and levied, abates by the death of the sole defendant before judgment, and carries with it a discharge of the attachment lien.
Omer Skeens instituted a suit against Basil Jones before G. J. Finney, justice of the peace of Kanawha County, and on July 14, 1936, sued out an attachment therein which was levied on certain lumber claimed to be the property of the defendant. Before the principal action was tried, defendant died and J. Wilmer Long was appointed administrator of his estate. Subsequent to the appointment of the administrator, the record discloses, the action before the justice was revived against the administrator, judgment was entered on plaintiff's claim, and the lumber levied on was ordered to be sold under said attachment. The record does not show the proceedings in the original suit, nor the procedure as to its revival. The petition and answer do disclose that a judgment was rendered against Jones' administrator on September 9, 1936. In the meantime, on July 15, 1936, Eloise V. Hastings, petitioner herein, filed for record in the office of the Clerk of the County Court of Kanawha County a bill of sale dated the first day of July, 1936, and purporting to sell some, if not all, of the lumber covered by the levy of the attachment. When the order of sale aforesaid was entered, Eloise V. Hastings applied to the Circuit Court of Kanawha County for a writ of prohibition against G. J. Finney, justice of the peace, C. E. Grishaber, constable, and Omer Skeens, and in her petition alleged that the justice was without jurisdiction to enter *303
the judgment and order of sale under the attachment, contending that the death of Jones operated to deprive the court of further jurisdiction in the case, and a rule in prohibition issued. Skeens' demurrer to this petition was overruled, and the points in question were certified under the provisions of Code
In the court below the opinion was expressed in the final order that the only question to be determined was the jurisdiction of the justice of the peace to hear the case after the death of Jones, which question, it was stated, had been adjudicated by this Court. The only basis for this statement is the fact that this Court refused to docket the case when it was certified after the demurrer to the original petition had been overruled. The action of this Court in refusing to docket the certified case is not to be held as a final determination of the question involved. In Sweeney v. Trust Co.,
We have not been able to find any authority for the proposition that in a suit before a justice of the peace where, during its pendency and before judgment, the sole defendant dies, the same can be revived against his personal representative. It must be borne in mind that a justice's court being a court of limited jurisdiction, no presumption of its jurisdiction exists in any case. The judicial authority of a justice is entirely statutory. Roberts v. Coal Company,
When Skeens obtained his attachment and the same was levied, he obtained a preference which could only be saved by securing a judgment in the principal case. Had Jones lived and Skeens failed to obtain a judgment therein, *305
the attachment would have been automatically discharged. InMidland Inv. Corporation v. Ballard,
In the answer of the defendants a question is raised as to the right of the petitioner to maintain this proceeding. The validity of the claim asserted by her is attacked. On this record we cannot pass on the merits of petitioner's claim. Suffice it to say she has a claim which she is entitled to assert, and under the holding of this Court inCorporation v. Ballard, supra, she may protect her claim by invoking prohibition.
The judgment of the circuit court is affirmed.
*306Affirmed.