184 S.E. 246 | W. Va. | 1936
Lead Opinion
This case is here upon writ of error (erroneously called an appeal in the statute. Ballouz v. Hart,
The first question to be disposed of is the motion of the defendant in error to dismiss this writ because no writ of error was properly obtained within four months from the order of the county court to the circuit court as is required by Code,
The order of the County Court of Kanawha County confirming the report of the commissioner of accounts was entered on the 13th day of August, 1934.
On November 19, 1934, an order was entered in the circuit court reciting the filing of the petition of Anna B. Miller praying for an "appeal" from the order of the county court, and granting the "appeal" and directing that the case be docketed.
On the 18th day of February, 1935, a notice was served upon counsel for Anna B. Miller to the effect that on the 26th day of February, 1935, counsel for the administrator would move the Circuit Court of Kanawha County to dismiss the "appeal" awarded on the ground that it had not been perfected as prescribed by law. There is nothing in the record showing a direct ruling upon such motion.
On March 22, 1935, an order was entered in the circuit court reciting the previously allowed "appeal" and ordering the record in the case to be "transferred" from the county court and made a part of the record of the circuit court "as if it had accompanied the petition praying for the appeal." A copy of this order was served upon counsel for the administrator on March 21st.
There are no bills of exceptions nor is there any certification of the record made in the County Court of Kanawha County shown in the record before us. The affidavit and account of Anna B. Miller under date of *140 February 28, 1934, is found in the record stamped: "Filed in the office of the Clerk of the Circuit Court of Kanawha County, June 21, 1935." The counter affidavit of the administrator, dated March 23, 1934, and bearing the same stamp of the Circuit Clerk of Kanawha County is among the papers. The report of the commissioner of accounts stamped filed in the County Court of Kanawha County August 13, 1934, and bearing an identical stamp of the Circuit Clerk of Kanawha County is also among the papers. Also among the papers are the exceptions of Anna B. Miller to the report of the commissioner of accounts stamped filed in the county court August 2, 1934, and bearing the same stamp of the circuit clerk as the other papers bear.
The deposition of Anna B. Miller, taken in the State of Arkansas on April 10, 1934, is among the papers stamped filed in the office of the clerk of the Circuit Court of Kanawha County June 21, 1935, as all the other papers seem to be stamped. This deposition bears no marking indicating that it was filed before the commissioner of accounts or that it was before the county court.
The depositions of Mrs. Carrie Miller Cocke and others, taken the 25th day of April, 1934, at Huntington, on behalf of the claimant, Anna B. Miller, are also among the papers, and bear no markings other than the stamp of the circuit clerk showing them to have been filed in his office on the same date that the other papers in the case were filed. The same is true of depositions taken on behalf of the heirs-at-law and distributees of the estate of Harry N. Miller, found among the papers. All the depositions show that they were taken to be read in evidence before Beverly Broun, commissioner of accounts.
In this state of the record, the defendant here says that the writ of error should be dismissed because of the fact that there was no record presented with the petition for a writ of error in the circuit court within four months from the date of the order in the county court as is required by Code,
Code,
The case of Ballouz v. Hart,
Dismissed.
Concurrence Opinion
The phase of procedural inquiry first arising is whether the writ of error was improvidently awarded by the circuit court. Code,
The first two statutes quoted establish the right of review of the action of a county court in allowing or disallowing a claim against the estate of a decedent. Though the statutes refer to "appeals" the reviewing procedure is in fact by writ of error. Ballouz v. Hart,
The requirement that the petition for review be filed in the circuit court within four months was complied with in the case at bar, but the record from the county court was not filed in the circuit court until about four months after the writ of error was awarded. The statute requires that the petition "shall be accompanied by the original record of the proceeding in lieu of a transcript thereof."
Though the case of Ballouz v. Hart, supra, is analogous, I doubt if the conclusion reached there is controlling in a situation such as is here presented because of vital changes in the statute. When that case was decided the statute, Code 1923, chapter 112, section 14, provided that a petition for an appeal (writ of error) to review an order of the county court should be presented to the circuit court, or a judge in vacation, within one year, and that "with such petition there shall be a transcript of the record and proceedings in the county court." It was held that a transcript meant a "copy," and that it was evident the purported transcript did not in fact embrace a copy *145 of all the proceedings in the case before the county court. The proceeding was dismissed for lack of a proper transcript.
Under the present statute a transcript is no longer required; the original record may be employed. The basis of theBallouz decision was an insufficient transcript, but because of the change in the statute, such problem does not now arise nor can it arise under the statute as it is now written. Therefore, in my judgment, that case loses its potency as a precedent. But, regardless of that case, I think we must hold that the requirement that the county court record be filed in the circuit court within four months must be complied with. This conclusion I would base broadly on the familiar proposition that for a litigant to avail himself of opportunity for review of his cause he must comply with statutory requirements. A right of review "is not as in the case of a suit at common law in the first instance an absolute right, but is one subject to such conditions and restrictions as the statute-law has properly put upon it." Casanova v. Kreusch,
The remaining phase of the procedure pertains to the record made up in the county court. It is urged that the record was not properly certified by the clerk of that court so as to identify the papers that were there considered, and therefore the circuit court did not have before it a proper basis for review.
Under proper bill of exceptions, the circuit court has identified the papers which were before it on the review of the case. There is a very high presumption that the papers thus identified are the identical ones that were transmitted to the circuit court by the county court. Among the papers identified by the circuit court and certified is the original report of Beverly Broun, commissioner of accounts. In said report, the commissioner states that he disallowed the claim of Anna B. Miller because she "failed to prove her claim by competent evidence." Further, he states: "Your commissioner is also *146 attaching to this report the original affidavit of Anna B. Miller, the counter-affidavit of Cantrelle L. Miller, administrator, and the evidence taken in regard to said claim." In addition to the papers in the record purporting to be the said original affidavit and counter-affidavit, there are extended depositions taken under proper notices. In each instance, the caption carries the title of this cause and the statement that the depositions are to be read and considered in connection with the claim of Anna B. Miller against the estate of Harry N. Miller, deceased, pending before Beverly Broun, commissioner of accounts for Kanawha County, West Virginia. In the light of this showing, I am persuaded that if the papers before us had been filed in the circuit court within the statutory period of four months there would be no other bar to our reviewing the case on its merits.
It is with regret I concur in the view that the case must be dismissed because of failure to file the record in the circuit court within four months, but I am more reconciled to that course since my examination of the papers before us. From that examination, I am convinced that the plaintiff in error could in no wise prevail. The claim of the plaintiff in error against the decedent is supported only by her own testimony, which, under Code,
Judge Litz authorizes me to say that he concurs in this note. *147