O'Brien. v. Camden

• Decision Date: 31 July 1868
• Citation: O'Brien. v. Camden, 3 W.Va. 20, 97 S. E. 6 (W. Va. 1868)
• Parties: Matthew O'Brien et al. v. Johnson N. Camden.
• Court: West Virginia Supreme Court

3 W.Va. 20

Matthew O'Brien et al.

v.Johnson N. Camden.

Supreme Court of Appeals of West Virginia.

July Term, 1868.

C. was summoned to answer a suggestion on the first day of a term. On the fifth day of the term the plaintiffs moved the court for a rule to compel C. to appear and answer; which the court refused upon the ground that the suggestion had not been docketed or the service of the summons proved, nor had it been in any way brought to the attention of the court, on the day to which it was returnable, and the case was discontinued. Held:

1. That it was the duty of the clerk to put the case on the docket, and his failure to do so should not prejudice either party.

2. That a party summoned to answer a suggestion is advised of what he is to answer, and when and where; and upon his failure to do so, the suggestor is entitled to his rule to compel an answer. Code 1860, chap. 188, sec. 13.

This case was brought up from Lewis county. The summons served upon Johnson 1ST. Camden, the defendant, was returnable to the 1st day of March term, 1867, of the circuit court of that county. The following is the order from which appeal was made:" O'Brien, Grafrlin and Hanson

vs.

Johnson N". Camden.

Upon a Suggestion

This day came the plaintiffs, by their attorney, and the court having maturely considered the motion made on the 5th day of the March term last, of this court, to grant thorn a rule against Johnson N. Camden, to compel him to appeal and answer the plaintiffs? suggestion, filed in the clerk's office of the circuit court of Lewis county, December 17th, 1866, which was made returnable to the 1st day of March term last of tins court, and the court having set upon the 1st day of March last, being the 1st day of the term, and the defendant, Johnson N. Camden, not being called, nor the service of the summons being proved, nor the suggestion docketed, nor the summons or suggestion in any way brought to the attention of the court on that day, the court is of opinion that the said summons was discontinued, and that the plaintiffs were not entitled to any rule against said defendant, Camden, on the 5th day of March term last, and doth overrule said motion."

C. Boggess for plaintiffs in error.

Brown, President. The defendant Camden was summoned to appear on the 1st day of the circuit court of Lewis county and answer a suggestion under section 11, chapter 188, Code 1860.

The plaintiff making the suggestion moved for a rule under section 13 of same chapter, upon the...