Gaines v. Stovall

• Decision Date: 07 November 1933
• Docket Number: 7557.
• Parties: GAINES v. STOVALL et al.
• Court: West Virginia Supreme Court

171 S.E. 646

114 W.Va. 282

GAINES v. STOVALL et al.

No. 7557.

Supreme Court of Appeals of West Virginia.

November 7, 1933

Submitted November 1, 1933.

Syllabus by the Court.

Statute requiring appellant to deposit money for printing record within three months after case is docketed in Supreme Court of Appeals held mandatory (Code 1931, 58-5-17).

Section 17, article 5, chapter 58, Code 1931, is mandatory wherein it provides that the failure of an appellant or plaintiff in error for three months after the docketing of the case to deposit with the clerk of this court a sufficient sum to pay for the printing of the record shall be deemed an abandonment of the appeal or writ of error, and that the same shall be dismissed.

Appeal from Circuit Court, Mercer County.

Action by P. G. Gaines against George P. Stovall and others. From an adverse judgment, plaintiff appeals. On motion to dismiss appeal.

Motion sustained.

Martin & Martin and Hartley Sanders, all of Princeton, for appellant.

James S. Kahle, of Bluefield, for appellees.

LITZ Judge.

This is a motion to dismiss an appeal for failure of appellant to deposit with the clerk of this court within three months from the docketing of the appeal an amount sufficient to pay the cost of printing the record in the cause.

After the expiration of the three-month period, without the deposit having been made, the appellant asked leave to move for reversal on the original record, which leave was granted and the cause docketed for hearing. This action was taken without the attention of the court being called to the fact that more than three months had elapsed since the docketing of the appeal; otherwise the request should have been refused.

Section 17, article 5, chapter 58, Code 1931, provides that "should the appellant or plaintiff in error fail for three months after his case has been docketed in the court of appeals to deposit with the clerk of the said court of appeals a sufficient sum to pay for the printing of the record, he shall be deemed to have abandoned his appeal or writ of error and the same shall be dismissed. ***" The act has been held mandatory in Perry v. Horn, 21 W.Va. 732; Kelner v. Cowden, 60 W.Va. 600, 55 S.E 649, and Huffman v. Gwinn, 104 W.Va. 328, 140 S.E 50, 51. In the last case this court said: "The purpose of the statute under consideration is to prevent delay on the part of appellant or plaintiff in error in perfecting his appeal or writ. With this in view, the act is mandatory in terms, requiring a dismissal...