Baker v. Ins
| Decision Date | 24 February 1942 |
| Docket Number | No. 9260.,9260. |
| Citation | 19 S.E.2d 92 |
| Parties | BAKER. v. GASK INS et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. A writ of error to an order of a trial court, to which no objection or exception has been taken, will be discharged as having been improvidently awarded.
2. An order of a trial court rendering judgment for costs alone but not adjudicating the merits of a case is not a final judgment, to which a writ of error will lie. Such defect is jurisdictional and should be considered by the appellate court ex mero motu.
Error to Circuit Court, Doddridge County.
Action by Irma Baker against W. F. Gaskins and others to recover upon a promissory note. To review an order rendering judgment for costs alone in defendants' favor, entered upon a directed verdict, plaintiff brings error.
Writ of error discharged.
L. W. Chapman, of West Union, for plaintiff in error.
P. Douglass Farr, of West Union, for defendants in error.
Irma Baker instituted this action before a justice of the peace against the defendants, W. F. Gaskins, E. A. Baker and Charles E. Baker, for recovery upon a promissory note. Upon plaintiff's appeal to the Circuit Court of Doddridge County the court directed a verdict in defendants' favor, and to an order rendering judgment for costs alone in defendants' favor, plaintiff obtained this writ of error.
The initial question presented by this record involves the propriety of this Court in granting the writ of error. Defendants' counsel say that the writ was improvidently awarded because there was no objection or exception to the order upon which it is based. In this regard defendants' position is well taken. To the order, plaintiff, in fact, did not object or except, and this Court is committed to the rule that a writ of error to an order of a trial court to which no objection or exception has been taken, should not be awarded. In Harmon v. Spurlock, 121 W.Va. 633, 5 S.E.2d 797, a writ of error was discharged for this reason to an order of the trial court awarding a peremptory writ of prohibition. A fortiori the rule is applicable to law actions. See Perry v. Horn & Carroll, 22 W.Va. 381, pt. 3 syl.
An examination of the order of which plaintiff complains presents a question which we think this Court should consider ex mero motu. The order does not render judgment adjudicating the matters in difference between the parties. It simply renders judgment for costs. Such an order, under the decisions of this Court, does not have finality as a judgment and, therefore, a writ of error will not lie. Code, 58-5-1 (a) provides that an appeal from, or writ of error or supersedeas to, a judgment, decree or order of the circuit court may be obtained "In civil cases where the matter in...
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