The decision of the Court in this case approves delay in litigation and upholds negligence in the prosecution of a suit or action. The demand of the plaintiff is stale, having been asserted by the commencement of an action more than twenty years ago. Nevertheless, the Court, by invoking what I consider to be doubtful and uncertain principles of law, holds that the plaintiff has the benefit of Code, 55-2-18.
The principle, that litigation should be ended within a reasonable time after the cause of action accrues, is virtually ageless and has been rigidly adhered to by applying statutes of limitations to actions and the doctrine of laches to suits. I think the opinion in the case at bar violates and disregards the many decisions of this Court with respect to refusing to enforce stale demands.
Prior to the enactment of the Code of 1931, if a party to an action died pending the action there could be no revival against his personal representative. Henning v. Farnsworth,41 W. Va. 548, 23 S.E. 663; Woodford v. McDaniels, 73 W. Va. 736,81 S.E. 544; Means v. Barnes, 72 W. Va. 512,78 S.E. 665. See Bank v. Trust Co., 114 W. Va. 791, 174 S.E. 556;Richardson's Ex'r et al. v. Jones, 12 Gratt. 53, 58. The reason given for such holdings is that a judgment against the personal representative would be "de bonis testatoris" and judgment against the surviving defendants would be "de bonis propriis", thus requiring separate judgments in one action.
After the death of Forsythe Stephenson, Code, 55-8-8, was enacted, permitting the joinder of a survivor in an action with the personal representative of a decedent. This raises the question whether Code, 55-8-8, is applicable to the action here considered, which was instituted in the year 1927. The opinion of the Court disposes of that question by holding that Code,55-8-8, is procedural and applied to the action pending at the time it became effective. I think this holding is contrary to the rule formerly obtaining in this jurisdiction.
In Harrison v. Harman, 76 W. Va. 412, 418, 85 S.E. 646, this Court, in discussing such question, uses the following language: "A statute is always presumed to have been intended to operate prospectively only, unless a contrary intention appears on its face in some way. 'A cardinal rule in interpreting statutes is to construe them as prospective in operation in every instance, except where the intent that they shall act retrospectively is expressed in clear and unambiguous terms, or such intent is necessarily implied
from the language of the statute, which would be inoperative otherwise than retrospectively.' " See Rogers v. Lynch, 44 W. Va. 94,29 S.E. 507; Casto v. Greer, 44 W. Va. 332,30 S.E. 100; Walker v. Burgess, 44 W. Va. 399, 30 S.E. 99; Burns v.Hayes, 44 W. Va. 503, 30 S.E. 101.
Indeed that rule has been recently restated in the following language: " 'There is always a presumption that statutes are intended to operate prospectively only, and words ought not to have a retrorespective operation unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied. Every reasonable doubt is resolved against a retroactive operation of a statute.' " Lester v. Comp. Comm.,123 W. Va. 516, 520, 16 S.E.2d 920. See Canterberry v.Canterberry, 118 W. Va. 182, 185, 189 S.E. 697; Jenkins v.Heaberlin, 107 W. Va. 287, 289, 148 S.E. 117; Trust Co. v.Hall, 106 W. Va. 687, 690, 146 S.E. 825.
Code, 63-1, the purpose of which is to repeal all general statutes theretofore existing, contains the following provision in Section 2: "Such repeal shall not affect * * * any rightestablished, accrued, or accruing, before the day this Code takes effect, or any prosecution, suit, or proceeding pendingon that day, except that the proceedings thereafter shallconform, so far as practicable, to the provisions of this Code; * * *." (Emphasis supplied.) In view of the holdings of this Court and the clear provisions of Code, 63-1-2, it is difficult to say, as a matter of logic, that Code, 55-8-8, operated retrospectively and effected a proceeding pending prior to its effective date.
In my opinion Code, 55-8-8, gives to a litigant the right to prosecute a suit or action against a deceased litigant. As stated above, prior to the effective date of the Code this could not be done. It is not a mere incident of procedure, as this Court held in Bankhead v. Baughman, 115 W. Va. 483, 486,176 S.E. 854, but in some instances is a substantial right on which depends whether a plaintiff could collect his debt. In my view the Court's holding
herein is entirely contrary to the great weight of authority in this and other jurisdictions and violates well established and generally accepted canons of statutory construction.
Cases are cited in the Court's opinion herein for the proposition that the death of a party to an action does not of itself abate the action. An examination of those cases discloses that where a party dies pending an action and without suggestion of his death, and the litigation proceeds to final judgment or decree, the judgment or decree is voidable but not void. See Watt v. Brookover, 35 W. Va. 323, 324, et seq., 13 S.E. 1007; McMillan v. Hickman, 35 W. Va. 705, 14 S.E. 227;Boal v. Wood, 70 W. Va. 383, 387, 73 S.E. 978; King
v. Burdett, 28 W. Va. 601. I do not controvert the holding of the cases just cited but I do say that the holding of those cases is not authority for Point 1 of the Syllabus in the Court's opinion. Of course, if a trial court proceeds to judgment against a deceased person or one civilly dead, it would be error to be corrected by appellate process. But it is an entirely different proposition to say that the action is not abated by the death of a party. I am therefore of the opinion that the first point of the syllabus is without supporting authority.
The opinion in this case treats a scire facias in the same manner as a summons commencing an action. A scire facias is an entirely different process from such a summons and when suchscire facias is used for the purpose of revival of an action on account of a change of parties, it constitutes a mere continuation of the original action. Black's Law Dictionary, Third Edition, page 1586. In the instant case the Court, citingKetterman v. Dry Fork Railroad Co., 48 W. Va. 606, 608,37 S.E. 683, holds that although the scire facias issued in this case may have been void, it was sufficient to keep the first action alive. I think that such holding ignores the basic difference between a scire facias and a summons. The Ketterman case, and others not necessary to cite, are authority for the proposition that a void summons commencing an action is sufficient to keep a cause of action alive, but nowhere has authority been cited to the effect that the issuance of a void scire facias performs that function. The issuance of a summons indicates that the plaintiff intends to press his action, but ascire facias, as here considered, was a mere process for the change of parties and was nothing more than an attempt to continue the first action which, at the time the scire facias
was issued, was barred because approximately four years had elapsed since the death of Forsythe Stephenson.
I agree that if there was a pending action, Code, 55-2-18, permitting the bringing of another action within one year, controlled. But as above shown, there was no action pending within one year of the time the present action was instituted. Therefore, I would affirm the ruling of the trial court.
For the reasons above stated I respectfully dissent.