Armit v. Town Of Whitmer

• Decision Date: 14 January 1908
• Citation: 60 S.E. 136,63 W.Va. 300
• Court: West Virginia Supreme Court
• Parties: DE ARMIT . v. TOWN OF WHITMER.

60 S.E. 136

63 W.Va. 300

DE ARMIT .

v.TOWN OF WHITMER.

Supreme Court of Appeals of West Virginia.

Jan. 14, 1908.

1. Justices of the Peace — Appeal — Trial De Novo.

Upon an appeal from the judgment of a justice the case is tried de novo. The judgment of the justice in no way enters into the consideration of the case upon the trial. When the appeal is entertained, the judgment is no longer of any force.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, §§ 655-664.]

2. Writ of Error—Final Judgment.

A judgment which merely awards costs to the defendant, without more, is not a final judgment. In order to have that character, it must profess to terminate and completely dispose of the action. Hence, if for the defendant, the final judgment must state that he be dismissed without day, or that it is considered that the plaintiff take nothing by his suit, or otherwise refer to the disposition made of the subject-matter.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 823-827.]

(Syllabus by the Court.)

Error from Circuit Court, Randolph County.

Action by A. De Armit against the town of Whitmer. Judgment for defendant, and plaintiff brings error. Writ of error and supersedeas denied.

Samuel T. Spears, for plaintiff in error.

J. Wm. Harman, for defendant in error.

McWHORTER, J. This was an action brought by A. De Armit against the town of Whitmer, a municipal corporation, before a justice in the county of Randolph, to recover the sum of $100 and interest, which he had on the 16th day of February, 1905, paid into the treasury of said town under the provisions of an ordinance thereof requiring such payment on application made by said plaintiff to said town, on receiving a certificate of authority issued to him to enable him to procure from the county court of said county a license to sell at retail in said town spirituous liquors, etc. The second section of said ordinance provided in what section ofthe town saloons, when licensed, should be located. Section 3 is as follows: "For each and every license to sell spirituous liquors, ale, wines, beer, and drinks of like nature, at retail, within the corporate limits of the town of Whitmer, there shall be paid into the treasury of said town the sum of five hundred dollars. Each and every application for such license, as described in the foregoing law, shall be accompanied by a forfeit of one hundred dollars, as a guaranty of good faith on the part of said applicant that he will use due diligence to secure a license upon the certificate of authority issued to him by said town. Said sum of one hundred dollars to be returned to him, if, after complying with all the requirements of law and this ordinance, he be refused a license by the county court. If said applicant succeed in securing said license, said sum of one hundred dollars shall be deducted from the full amount to be paid for said license, as provided in the foregoing law."

On April 20, 1905, plaintiff applied to the common council of the town of Whitmer, then in session, to return to him the $100 so paid by him; he not having procured from the county court the license to be applied for and for which he had taken from the said council a certificate of permission to lay before the county court. On the 27th of April, 1905, the council of said town, then in session for the purpose of considering plaintiff's application for the return of said sum of money, refused to return the same for the reason, then assigned, that applicant had not used due diligence to get his license. The justice rendered judgment for plaintiff for $108.22, the said sum with its interest, with interest thereon from June 29, 1906, the date of judgment. The defendant appealed from said judgment to the circuit court of Randolph county. On the 11th day of September, 1906, the parties appeared by their counsel and, waiving a jury, submitted the cause...