11 S.E.2d 753 | W. Va. | 1940
In this notice of motion proceeding, instituted in the Circuit Court of Wayne County, in which Margaret Hensley was plaintiff and S. M. Copley and Chris Copley were original defendants, S. M. Copley prosecutes error to a judgment rendered against the original defendants and one Florence Copley, and to a judgment (erroneously designated a decree) refusing to reverse the former judgment *622 upon the petition of said original defendants filed in said circuit court.
On December 12, 1933, Florence Copley, administratrix of the estate of Allen Taylor Hensley, deceased, gave bond as such administratrix in the County Court of Wayne County in accordance with Code,
To the notice of motion plaintiff in error filed a purported plea in abatement, which, because it directs attention only to matters appearing on the face of the notice, should and will be regarded as a demurrer. None of the grounds asserted therein directs attention to the fact that this proceeding was instituted by plaintiff in her individual capacity and not in the name of the State of West Virginia, notwithstanding the bond is payable to the State. We cannot, however, overlook the fatal impropriety of this proceeding. The question raised is entirely jurisdictional. Code,
Plaintiff's counsel, however, in oral argument suggested that the strict rule does not apply here, because judgment had been obtained against the principal on the bond in an action at law prior to the instant proceeding. The reason advanced does not, however, seem sound. No judgment was obtained against the sureties in the prior action and no privity of contract lies between them and the plaintiff here. Whatever privity of contract lies between the parties must be found in the bond itself. There, expressly such privity is only between the State of West Virginia on the one hand and the principal and sureties on the bond on the other. After carefully considering counsel's *624 suggestion, we are convinced that the law of procedure governing law actions on bonds, such as the one involved here, is based solely on privity of contract. It follows that this proceeding should have been brought in the name of the State of West Virginia.
As an additional objection to jurisdiction, plaintiff in error asserts that notice of motion for judgment is not the proper remedy. Code,
We therefore reverse the judgments of the trial court so far as plaintiff in error is affected thereby, and judgment will be entered here in his favor awarding costs against plaintiff both in this and the circuit court.
Judgments reversed as to plaintiff in error, and judgmententered here. *625