Byer v. Paint Creek Collieries Co.

86 S.E. 476, 76 W. Va. 641, 1915 W. Va. LEXIS 162

• Court: West Virginia Supreme Court
• Decided: September 21, 1915
• Status: Published

Opinion

Robinson, President:

These two actions are alike and may be considered together. They are actions in trespass on the case, for the recovery of damages for deaths by alleged negligence in the operation of a coal mine. Demurrers to the declarations were sustained by. the trial court, and, the plaintiffs declining to amend, judgments of dismissal and nil capiat were entered.

In each ease the declaration contained no averment of the appointment and qualification of the plaintiff as adminis-tratrix. Therefore, the demurrers were rightly sustained. Austin v. Calloway, 73 W. Va. 231; Ferry v. New River Coal Co., 74 W. Va. 122. Plaintiffs having declined to amend by averring their appointment and qualification, the judgments of dismissal and nil capiat were warranted, even if the declarations were sufficient in other particulars.

It is said on behalf of plaintiffs that the insufficiency we have mentioned was not suggested on the consideration of the demurrers. That may be. We can only speak by the record. It shows in each case a demurrer to a declaration bad in not averring the appointment and' qualification of the plaintiff as administratrix. The demurrers raised the point. Presumptively at least,, the court considered it. The demurrers were general, challenging every insufficiency. The declinations to amend must be considered quite as broad.

Orders will be entered affirming the judgments.

Affirmed.