G'eorge v. Kittle

• Decision Date: 23 November 1926
• Docket Number: (No. 5843)
• Citation: 102 W.Va. 613
• Parties: William T. G'eorge v. Hon. Warren B. Kittle, Judge, etc. et al.
• Court: West Virginia Supreme Court

102 W.Va. 613

William T. G'eorge

v.Hon. Warren B. Kittle, Judge, etc. et al.

(No. 5843)

Supreme Court of Appeals of West Virginia.

Submitted November 17, 1926.

Decided November 23, 1926.

Judgments and Decrees Costs Where Non-Resident Plaintiff Has Been Required to Give Bond as Such for Costs, and After Sixty Days Have Expired, Court, in Absence of Plaintiff or Its Counsel, Dismissed Cause for Failure to Give Bond, Chancellor at Next Term of Court May Entertain Motion to Set Aside Order of Dismissal on Ground That Bond Has Been Actually Executed and Lodged With Clerk Within Sixty Days, and That Honest and Diligent Effort Made to Comply With Order Requiring Bond. In Such Case Provisions of Sec. 11, Chap. 127, Code, Apply and Give Court Jurisdiction to Refuse or Grant Motion to Set Aside Order and Reinstate Cause on Docket.

Where a non-resident plaintiff has been required to give a bond as such for costs, and after sixty days have expired, the court, in the absence of plaintiff or its counsel, dismisses the cause for failure to give bond, the chancellor at the next term of court may entertain a motion to set aside the order of dismissal on the ground that a bond has been actually executed and lodged with the clerk within the sixty days, and that an honest and diligent effort has been made to comply with the order requiring bond. In such case the provisions of Sec. 11, Chap. 127, Code, apply and give the court jurisdiction to refuse or grant the motion to set aside the order and reinstate the cause on the docket.

Original Jurisdiction in Prohibition, Taylor County.

Petition by W. T. George against Hon.'Warren B. Kittle, Judge, etc., Forestglen Land Company, a Corporation, respondents.

Writ refused.

Wm. T. George and W. B. Talbott, for petitioner. Ira E. Robinson and Staige Davis, for respondents.

Lively, Judge:

By this rule in prohibition the jurisdiction of the trial court is challenged in so far as the court reinstated the cause on the trial docket and permitted the plaintiff therein to give bond for costs thereafter accruing.

The Forestglen Land Company instituted its suit in chancery against W. T. George, in August 1925, and on April 12, 1926, defendant George appeared, suggested the non-residence of plaintiff, and moved for security for costs. Plaintiff's counsel admitted non-residence, and an order was entered as of that date requiring plaintiff to give a bond in the penalty of $200.00, conditioned according to law. By Sec. 2, Chap. 138, Code, if bond be not given before the expiration of sixty days from the date of the order requiring it, the suit shall be dismissed by order of the court, unless before the order of dismissal security be given. On June 19, 1925, at a special term of court, George moved dismissal because no proper cost bond had been executed, and the court entered an order dismissing the suit and striking it from the docket. On Sept. 8, 1926, at the following term, the plaintiff appeared by counsel, whereupon plaintiff filed a petition and written motion for reinstatement of the cause, supported by affidavits of Graham C. Painter and A. S. Poling. Defendant demurred to and answered the petition, and filed in support of his answer the affidavit of Corder, the circuit court clerk. Upon consideration thereof, the court ordered, the cause reinstated and to be proceeded with as if there had been no dismissal, requiring plaintiff to pay all costs accrued to that date, Sept. 8, 1926, which were accordingly paid, and requiring plaintiff as a non-resident to execute a bond for costs in the penalty of $300.00, which was then tendered, approved, and accepted by the court, and filed. This rule was then obtained asking that plaintiff and the circuit judge be prohibited from further proceeding in the cause, on the ground that the court had no jurisdiction to reinstate the cause after it had been dismissed by order of June 19, 1926.

It appears from the return, and the original papers brought here by certiorari, that plaintiff, Forestglen Land Company, by counsel sent through the mails to the circuit clerk a bond for costs with a bonding company as surety, in the penalty of $200.00, conditioned according to law, which reached the clerk on June 9, 1926, on which he endorsed, "Received by registered mail this 9th day of June, 1926. W. D. Corder, Clerk," and lodged the same in his office. The bond was signed by Forestglen Land Company by its president under corporate seal, and by the United States Fidelity and Guaranty Company of Maryland, as surety, under corporate seal. The bond was not acknowledged by either corporation. Painter (of counsel for plaintiff) in his affidavit says that on the clay bond was required he arranged with the clerk for a bond with the United States Fidelity and Guaranty Company of Maryland as surety, and that the clerk said he would, upon receipt of the bond, have the local agent of the surety company (a Mr. Poling) come in and countersign the same. The bond was forwarded to the clerk by Bowie and Clark, general attorneys for plaintiff, on June 8th, with the request that he call in the local agent for the guaranty company to countersign, as claimed by Painter. Poling says in his affidavit that he was the local agent, and upon receiving a letter from his principal that they had executed the bond and that it had been forwarded to the clerk, and asking him (Poling) to countersign, he went to the clerk's office for that purpose and was told by the clerk that the bond was not ready, that a question had been raised as to its correctness. He says he has always been ready and willing to countersign the bond. Corder (the clerk) says he did not have an understanding with Painter that he would accept bond and have the local agent come in and countersign same, as claimed by Painter It appears from Painter's affidavit that on June 16th, he wrote the clerk, stating that he (Painter) had been advised that bond for costs had been forwarded to him, and asking if it had been received and filed. Corder answered on June 18th, that the bond had been received by registered mail and was lodged in the office. Painter says that he was never advised of any objection to the bond until after he had learned that the suit had been dismissed for want of proper bond on June 19, 1926. Counsel for plaintiff live in the City of Charleston.

George demurred to the petition for reinstatement and answered the same. The demurrer is to the effect that the petition comes too late (after adjournment of special term); and that it shows on its face negligence on the part of plaintiff in tendering a proper bond. The answer denies that the clerk agreed to take the bond with the guaranty company as surety, and to have the local agent in Philippi come in and countersign, and exhibits Corder's affidavit. It denies the allegation in the petition that plaintiff had honestly endeavored to comply with the order requiring bond, but avers that plaintiff was...