Miller v. Miller , 117 W. Va. 138 ( 1936 )

The phase of procedural inquiry first arising is whether the writ of error was improvidently awarded by the circuit court. Code, 44-2-19, dealing with the reports of commissioners of accounts in respect of matters arising in the settlement of decedents' estates, provides, in part, as follows: "An appeal from the decision of such county court on such report and exceptions and on the supplemental report and exceptions, if there be such supplemental report, may, without any formal bill of exceptions, be taken to the circuit court of the county. The appeal shall be tried and heard in the circuit court, or before the judge thereof in vacation, on the record made before the commissioner and the county court." Code, 58-3-1, provides: "An appeal shall lie to the circuit court of the county from the final order of the county court in the following cases: * * * (e) the appointment and qualification of a personal representative, guardian, or committee, and the settlement of their accounts." Code, 58-3-4, provides: "In any case in which an appeal lies under section one of this article on behalf of a party to a controversy in a county court, such party may present to the circuit court of the county in which the judgment, order or proceeding complained of was rendered, made or had, or in the vacation of such court, to the judge of such court, the petition of such party for an appeal. Such petition shall be presented within four months after such judgment, order or proceeding was rendered, had or made, and shall assign errors. It shall be accompanied by the original record of the proceeding in lieu of a transcript thereof."

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, 96 W. Va. 580. The last of the three statutes quoted (Code, 58-3-4) prescribes the procedure for the attainment of such review.

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 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, 21 W. Va. 720, 724. Consult: 3 Corpus Juris, p. 297.

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 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, 57-3-1, is incompetent unless the inhibition is removed because of testimony introduced on behalf of those interested in the decedent's estate. Two of such witnesses testified, namely, Gertrude May Miller, widow of the decedent, and Marie Miller, a daughter. Their testimony is of a more or less general nature. Neither of them attempts to testify directly in refutation of any phase of the plaintiff's claim. Under settled rules, therefore, I do not think that their testimony operated to remove the statutory bar against the claimant's testimony.

Judge Litz authorizes me to say that he concurs in this note.