State Ex Rel. Nutter v. MacE

44 S.E.2d 851, 130 W. Va. 676, 1947 W. Va. LEXIS 76

• Court: West Virginia Supreme Court
• Decided: November 4, 1947
• Docket: 9996
• Status: Published

Opinions

Lovins, Judge:

On the petition of Nancy Nutter and Selina Nutter this Court awarded a write of habeas corpus ad subjiciendum directed to Ruth Mace, who, on August 21, 1947, had been appointed committee for petitioners by the County Court of Wood County, West Virginia.

Petitioners are sisters, aged eighty-one and seventy-nine years, respectively, and resided on a farm jointly owned by them, situated in an isolated section of Roane County, West Virginia. Their residence is located approximately three-fourths of a mile from a public road, and is without modern conveniences relative to heating, lighting, water and toilet facilities.

Nancy Nutter is suffering from arthritis deformans. At the time she was taken to Wood County she was suffering from a vitamin deficiency or malnutrition, and is usually confined to her bed, though on occasions she uses a wheel chair. Selina Nutter is afflicted with arthritis, has suffered a fracture of one of her lower limbs, is lame and uses a cane, but she is partially able to attend to her personal needs.

A brother and sister, aged seventy-four and sixty-six years, respectively, reside near petitioners and are their closest relatives. There are also a number of nephews, nieces, cousins and other relatives by marriage residing in Roane and Wood Counties.

In the month of July, 1947, petitioners directed an attorney to prepare a deed conveying their land to the son and daughter of one of their nephews and to prepare a will by which each of them bequeathed their personal property to the same persons. The proposed grantees and legatees, as a consideration for the conveyance and as an inducement for making the will, were to support, maintain and care for petitioners for the remainder of their lives.

Under date of July 16, 1947, the brother and sister of petitioners notified them that, on August 5, 1947, they would move the County Court of Roane County to appoint a committee for petitioners. Thereafter the attorney who was to prepare the deed and wills, in company with a physician, visited petitioners at their home on-August 1, 1947. Shortly thereafter the brother, sister, and respondent herein induced petitioners to go to Spencer, the county seat of Roane County, where they remained for a short time in a hospital. They left the hospital in Spencer and went to Wood County. The exact time of their arrival in Wood County is not shown, but it is clear that they arrived on or about August 10, 1947. Upon their arrival they were taken to Vienna, in Wood County, where they were placed in the “Marshall Rest Home.” The evidence is in conflict whether petitioners willingly left Roane County and went to Wood County or whether they went contrary to their wishes. However, it is clear that if petitioners went to Wood County willingly, they did so with the understanding that they were going there for the purpose of consulting a physician in whom they had great confidence.

While they were in the rest home a person was sent by one of their cousins to remove them therefrom to their home in Roane County, but that effort was unsuccessful. Shortly after that attempt, a notice was served on petitioners by Ruth Mace, the respondent herein, that on the 21st day of August, 1947, at ten o’clock a.m., the said Ruth Mace would move the County Court of Wood County to appoint her as committee for petitioners. The notice was served on petitioners in person on August 16, 1947, according to the return of service signed and sworn to by Ruth Mace.

The County Court of Wood County, being in regular session on the return day of the" notice, entertained a motion by the brother and sister of petitioners to appoint a committee for them. No objection being made, and petitioners making no appearance, the motion was sustained, and Ruth Mace was appointed their committee. Ruth Mace entered into a bond in the penalty of five thousand dollars, and appraisers were appointed, who appraised the property of petitioners in Wood County and in Roane County. On September 8, 1947, the report of the appraisers was made, from which it appears that Selina Nutter is the owner of real and personal property in the amount of $16,783.58 and Nancy Nutter is the owner of real and personal property amounting to $4,509.46.

The next step in the proceeding before the County Court of Wood County occurred on September 9, 1947, at a regular session of said court held on that day. The petitioners having theretofore given notice of their intention so to do, appeared by counsel and moved the court to set aside the order of appointment entered on August 21 and to declare the appointment of respondent void on the grounds: (1) That petitioners are residents of Roane County and have no property or residence in Wood County; (2) that petitioners were surreptitiously taken from Roane County to Wood County against their will; (3) that their counsel had been denied the opportunity of consulting petitioners since they had been placed in the Marshall Rest Home; and (4) that the order of August 21, 1947, showed no finding of mental incompetency. On the hearing of the motion counsel for respondent and petitioners stipulated that petitioners were born in Roane County; had lived therein all their lives until taken to the “Marshall Rest Home” on or about August 10, 1947; and that the order entered on August 21, 1947, should be amended to show that the County Court of Wood County, prior to the appointment of the committee, had affirmatively found that petitioners were incompetent. Upon consideration of said motion, it was overruled.

On motion of counsel for respondent, made on September 10, 1947, the bond of five thousand dollars theretofore given by respondent was increased to twenty-five thou sand dollars. Thereafter petitioners were granted a writ of habeas corpus ad subjiciendum by this Court, as here-inabove stated.

In this proceeding the first question to be discussed and determined relates to the application and effect of a writ of habeas corpus. If confinement or restraint of the petitioners is imposed by virtue of an order, finding or judgment, made or entered by a court having competent jurisdiction of the subject matter in general, valid on its face, although voidable or erroneous, a person so confined or restrained will not be discharged therefrom by a writ of habeas corpus. But the writ may be used if the process or proceeding is void. Ex Parte Evans, 42 W. Va. 242, 24 S. E. 888; see State v. Plants, 25 W. Va. 119; Ex Parte Mooney, 26 W. Va. 36; Ex Parte Page, 77 W. Va. 467, 87 S. E. 849; Ex Parte Veltri, 83 W. Va. 226, 98 S. E. 146; Ex Parte Hickey, 93 W. Va. 411, 116 S. E. 765; Ex Parte Kirby, 100 W. Va. 70, 77, 130 S. E. 86; Shad v. McNinch, 103 W. Va. 44, 136 S. E. 865; Browsky v. Perdue, 105 W. Va. 527, 143 S. E. 304; Slater v. Melton, 119 W. Va. 259, 193 S. E. 185.

It may be said that there are apparent exceptions to the foregoing rule as shown by some of the opinions of this Court. See Schutte v. Schutte, 86 W. Va. 701, 104 S. E. 108; Ex Parte Samuel and Slivoo, 82 W. Va. 486, 96 S. E. 95; and Wright v. Wright, 78 W. Va. 57, 88 S. E. 606. In the Schutte case this Court discharged a petitioner from restraint occasioned by a finding of a lunacy commission. In Wright v. Wright, supra, the petitioner was discharged from restraint caused by the finding of a justice of the peace upon an inquisition of lunacy. In Ex Parte Samuel and Slivoo, supra, this Court discharged petitioners on the ground that no competent evidence was introduced in a preliminary hearing on a criminal, charge. It appears that this Court acted in the Samuel and Slivoo and in the Wright cases on the theory that the justices of the peace making the findings which caused the restraints complained of were not “courts of competent jurisdiction,” as defined in the case of Ex Parte Evans, supra, and others cited above. In other words, this Court considered the findings of the justices of the peace in those cases only as prima facie evidence. In this respect the Samuel and Slivoo case and the Wright case are to be distinguished. In the Schutte case the finding of the lunacy commission may also be considered as prima facie evidence only.

However, the decision of this Court in the case of Sutherland v. Workman, 119 W. Va. 683, 195 S. E. 856, wherein petitioner was imprisoned by a circuit court for contempt, is contrary to the general rule above stated. The principle was not adverted to and the case is not distinguishable from the cases enunciating the rule.

In the instant case petitioners are confined in the rest home under the direction of respondent, who, in her return to the writ, pleads her appointment as committee for petitioners. If the respondent was legally appointed committee for petitioners, she is entitled to the custody and control of the persons of petitioners, they not being confined in a jail or hospital. Code, 27-9-4. The return aforesaid necessitates a discussion of the jurisdiction of the County Court of Wood County.

Section 24, Article VIII of the Constitution of this State confers on county courts jurisdiction to appoint committees for insane persons. Legislative enactments, made pursuant to the constitutional provision, likewise confer jurisdiction on county courts to appoint committees. Code, 7-1-3. Another statute, more specific than the general authority contained in Code, 7-1-3, imposes upon county courts the duty to appoint a committee for a person who has been found to be insane or a mental defective by any court or by the mental hygiene commission, or, if a person is committed to a state hospital for the insane by the county court/ Code, 27-9-1.

Code, 27-3, creates a mental hygiene commission for each county of this State, and confers on such commission the right to pass on the sanity of persons brought before it in accordance with the procedure outlined therein. Under Code, 27-3-3, a circuit court is authorized to pass on the sanity of a person brought before it in the absence of a finding by the mental hygiene commission. By clear inference a county court, under Code, 27-9-1, may likewise pass on the sanity of a person. But it is to be noted that the lunacy commission’s jurisdiction is limited by the terms of the statute to residents of the county; and the circuit court’s authority is limited to an “inhabitant” of the county. No such limitation is found relative to a county court’s jurisdiction.

We are mindful that, in discussing the question of jurisdiction of the county court in the case of Evans v. Johnson, 39 W. Va. 299, 305, 19 S. E. 623, this Court characterized a county court as having limited jurisdiction and as not being a court of record. But in later cases this Court has held that in the appointment of a committee for a person non compos mentis, made in regular session, county courts have general or unlimited jurisdiction and exercise judicial powers, and an appointment of a committee, so made, cannot be attacked collaterally. Doak, Admr. v. Smith, 93 W. Va. 133, 116 S. E. 691. See Boone v. Boone, 123 W. Va. 696, 703, 17 S. E. 2d 790. It may be said that the jurisdiction of the County Court of Wood County does not affirmatively appear. But, having general jurisdiction and exercising judicial powers conferred by the Constitution of this State in the appointment of committees, the jurisdiction of county courts in that respect will be presumed.

It is true that a stipulation of counsel shows that petitioners were not residents of Wood County, and it is a reasonable assumption that they had no property therein. An examination of the order entered by the County Court of Wood County shows that notice was given to petitioners of the appointment of respondent as their committee. We must assume from the face of the record that jurisdiction existed, although it may be observed that further examination of the record on writ of error may establish that the action of the County Court of Wood County was erroneous and may be voidable.

In the case of Colley v. Calhoun, 89 W. Va. 399, 109 S. E. 484, a resident of McDowell County went to Bluefield, in Mercer County, for the purpose of being treated in a hospital. While in Mercer County he died, and thereupon the County Court of Mercer County appointed an administrator. The administrator instituted a suit for the purpose of collecting a debt due his decedent, but the authority of the administrator was challenged on the ground that it was an improper appointment. On that state of facts this Court held: “An appointment of an administrator in a county in which the intestate left no estate and did not reside at the time of his death, is not void and cannot be collaterally attacked. Although voidable, it is treated as valid and allowed full operation, until vacated or otherwise abrogated.” In the instant case the petitioners are residents of Roane County and went to Wood County for the purpose of receiving medical attention. In that respect the analogy between the instant case and the Colley case is clear. The statute relative to jurisdictional authority of county courts to appoint administrators of the estates of deceased persons is specific. Code, 44-1-4, and Code, 41-5-4. But the statute concerning the appointment of a committee does not specifically designate any particular county court as having jurisdiction to make such appointments. The difference in statutory provisions concerning the appointment of administrators and committees is a stronger reason for holding the appointment of the committee, here considered, as valid until properly challenged by appellate process.

Petitioners made no appearance before the County Court of Wood County and apparently no testimony was introduced. It seems that the county court made its finding of incompetence on the ex parte statement of one physician and it could be said, with some reason, that the finding of incompetency so made is voidable. But the absence of a finding of incompetency does not render the appointment of a committee void, such finding not being a prerequisite to the appointment of a committee by the county court. Doak, Admr. v. Smith, supra, and Moore v. Coleman, 126 W. Va. 815, 819, 30 S. E. 2d 333.

We conclude that the appointment of respondent as committee cannot be attacked collaterally by a proceeding in habeas corpus and that the same is effective until properly challenged by a writ of error or other appellate process. Since respondent is serving as a committee under an appointment which may be voidable, though not so declared, she has a right to the custody of petitioners by virtue of such appointment, and we remand the petitioners to her custody.

We take this opportunity to say that the action of respondent relative to taking the petitioners to Vienna, in Wood County, among strangers and away from their home where they have resided for most, if not all, of their lives, is not to be commended. It is frequently observed that old persons taken to strange places, to live among strangers, suffer more damage than if they were allowed to remain among familiar scenes ándito associate with old friends.

In accordance with the foregoing the writ is dismissed and the petitioners are remanded to the custody of respondent.

Writ dismissed; petitioners remanded.