58 W. Va. 595 | W. Va. | 1906
Robert O. Karnes as committee for Huldah Alvis, lunatic, brought an action of unlawful entry and detainer against James H. Johnston before a justice of Mercer county to recover possession of land, which went by appeal to the circuit, court, where the case was tried by the judge in lieu of a jury, and judgment rendered for the plaintiff. Upon the trial the plaintiff gave in evidence against the objection of the defendant an order made by the county court reciting that a justice of the peace appeared in open court and made known to the county court on oath that Huldah Alvis was, in the mode prescribed by law, found by him to be a lunatic, and was so adjudged by said justice, and that the custody of her person had been by said justice directed to be turned over to her committee, when one should be appointed, and appointing Karnes a committee for her. No notice of this proceeding in the county court was given to Huldah Alvis. This Court has decided that the appointment of a committee for an insane person by the county court or its clerk without notice is void. South Penn Oil Co. v. McIntire, 44 W. Va. 296. But it is said that the doctrine is only applicable under section 34 of Code, chapter 58, where a person is suspected of being a lunatic, and where it is sought to appoint a committee for him, and to adjudge him for the first time on same motion to be insane, and that section 33 does not require a notice where he has been found insane by a justice upon an inquisition under Code, chapter 58, section 9. The Melntire case and others in this Court were not cases where the person had been found by a justice to be insane, as in this case. The question then arises, Is notice of the appointment of a committee for a person as insane required where he has been found by a justice to be insane upon such inquisition ? It is argued that as section 33 authorizes a county court to appoint when a justice has found one insane, without providing for' notice, and as section 34 provides that a county court may
Therefore, he must have notice, because he has a right to meet and defeat the prima facie case made by the finding of the justice. It is argued in a brief that under circumstances the judgments of inferior tribunals are to be regarded as effective as though of courts of general jurisdiction. The general rule is that jurisdictional facts must appear in the justice’s record. The counsel admits this proposition, but lays down the proposition above stated of the finality of justice’s judgment; but in laying it down he cites the Ency. PI. & Prac. Yol. 12, 672, stating that where it appears affirmatively that the justice has acquired jurisdiction, “both of the subject matter of the action, and the person of the defendant, then the same presumptions are indulged in faver of the regularity and validitji- of the proceedings of such justice’s court as are extended to courts of general jurisdiction.” That is a correct statement of the law and is so laid down in Shank v. Town, 43 W. Va. 242. But note, that authority demands that there be jurisdiction of the person and subject matter. There is no jurisdiction over Huldah Alvis for want of notice. Therefore, the order of the county court appointing Johnston a committee is void, and was not evidence.
There is another reason why the county court order is abortive. The record shows that whilst the justice declared Huldah Alvis insane, he did not find that she should be confined in a hospital for the insane, did not commit her to» the1 jail, did not place in or commit her to the custody of the sheriff, nor turn her over to any person to be kept and cared for as provided in section 10, chapter 58, Code; but left her in the exercise of freedom of her person until a committee should be appointed, and ordered that then she be turned over to such committee, and ordered her then into his custody. Now, the justice under said section exercises a special,
Another question is presented in the case. The record does not show that the entry of the defendant was within two years next before the suit as required by Code, chapter 50, section 211. A justice under this section cannot give judgment, unless the entry was within two years next before the suit. But it is contended that the defendant has to prove this as a matter of defense as under the ordinary statute of limitation he must plead the statute and sustain his plea. The defendant contends that the plaintiff carries the burden of showing the entry within such two years. The jurisdiction of the justice under this statute is a special and limited one, conferred by the statute, and we think that the plaintiff must show, not only an entry, but an entry within two years before the suit. It is a part of the very letter of the statute giving the action, not the general statute of limitations. In Billingsley v. Stutler, 52 W. Va. 92, the syllabus says that: “To sustain an action of unlawful entry and detainer, the plaintiff must show that his right of action accrued within.three years from the commencement of his action, otherwise he will be remitted to his action ■ of ejectment. ” I cannot say that the point of where rests the burden of proof in this matter -was exactly decided, but the language just quoted imports it.
Judgment reversed and action dismissed.
Reversed a/nd Dismissed.