Blumberg v. Snyder
| Decision Date | 31 January 1922 |
| Citation | 90 W.Va. 145 |
| Parties | D. M. Blumberg, Administrator, v. S. M. Snyder. |
| Court | West Virginia Supreme Court |
Appeal and Error Circuit Court Must State that it Deems Common Pleas Judgment Plainly Right to Make Order Refusing Writ of Error Final and Reviewable.
An order of the Circuit Court of Kanawha County refusing to allow a writ of error to the judgment of the Court of Common Pleas of that county must state therein that the judge thereof deems the judgment of the Court of Common Pleas plainly right and that he rejects the application for error on that ground, in order to make such order final and subject to appellate process, as provided in chap. 109, sec. 20, Acts, 1915; and if a writ of error from this court has been granted in the absence of such finality in the order, required by said Act, it will be dismissed as improvidently awarded.
Error to Circuit Court, Kanawha County.
Action by D. M. Blumberg, administrator of the estate of Dora Marovitz, deceased, against S. M. Snyder. From a judgment of the circuit court refusing to award plaintiff a writ of error to a final judgment of the court of common pleas, plaintiff brings error.
Writ of error dismissed.
Morton & Mohler, for plaintiff in error.
E. B. Dyer and Morgan Owen, for defendant in error.
This writ of error prosecuted by Blumberg, administrator, is to a judgment of the circuit court of Kanawha County, rendered on the 15th day of June, 1921, refusing to award to him a writ of error to a final judgment of the court of common pleas of Kanawha County, rendered on May 24, 1921. in an action of assumpsit in which he was plaintiff and S. M. Snyder was defendant.
The action involved the right of Blumberg as administrator of Marovitz, deceased, to sell and assign a contract of lease of a certain building made by Snyder to Marovitz in his lifetime, without first obtaining the written consent of Snyder, the lessor, waiving the covenants in said lease against assignment or sub-letting by Marovitz, the lessee. The lease provided that the lessee should not assign the lease nor sublet without the consent of lessor in writing, under penalty of forfeiture, and Snyder refused to give consent to Blumberg, the administrator, in writing to a waiver of these provisions. In order to protect the interests of the estate by speedily converting the lease, together with the valuable stock of merchandise in the building leased, into money, Blumberg paid Snyder, under protest, $1500.00 and thus obtained his written consent and waiver. Afterwards he began this action to recover the $1500.00 as paid without consideration deemed valuable in law. The court of common pleas, when plaintiff rested his case, directed a verdict for defendant, which was accordingly returned, and judgment of nil capiat entered thereon.
A petition accompanied by the record was afterwards presented to the judge of the circuit court, praying for a writ of error, which, having been inspected and considered, was refused. The order states: "The Court * * * is of opinion to and doth refuse to award to the said D. M. Blumberg, administrator of the estate of Dora Marovitz, a writ of error and supersedeas to the judgment." As above stated, it is from this order Blumberg now prosecutes this writ of error.
We are met at the threshold with a challenge to our jurisdiction to entertain this writ. Chapter 109, Acts of 1915, establishes the court of common pleas of Kanawha County, defines its powers and duties, and sec. 20 thereof prescribes the procedure by which appeals, writs of error or supersedeas may be obtained by application to the circuit court, thence, in case of refusal, to this court. The section reads: "In a case wherein the appeal, writ of error or supersedeas is to the circuit court and the court or judge thereof deems the judgment or order plainly right, and rejects it on this ground, if the order of rejection so state, no further petition shall afterward he presented for the same purpose, but the petition and order of rejection with transcript of the record may be presented to the supreme court of appeals, or judge thereof, in vacation, for an appeal from said order of rejection, if the matter is one of which said supreme court of appeals has jurisdiction and, if allowed, the same proceeding may be had thereon as...
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Blackburn v. State
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