Gibson v. Thorn
| Citation | 12 S.E.2d 535,122 W.Va. 716 |
| Decision Date | 14 December 1940 |
| Docket Number | 9021. |
| Parties | GIBSON v. THORN. |
| Court | Supreme Court of West Virginia |
Dayton R. Stemple, of Philippi, for plaintiff in error.
William T. George, Jr., of Philippi, for defendant in error.
This proceeding originated in the court of a justice of the peace in Barbour County. The plaintiff, John Gibson, sued Henry Thorn for $300. On August 1, 1938, both appeared before the justice and the plaintiff having filed no statement of account, judgment for $19.55 was rendered for defendant based upon what appears to have been a detailed verified statement of a counterclaim filed by the defendant. On the same day, the plaintiff filed an appeal bond before the justice with approved sureties and on August 29th, a certified transcript of the proceeding before the justice was received in the office of the circuit clerk. The ensuing term of the Circuit Court of Barbour County commenced October 24th. At that time, as well as at the February term 1939, there is no record of an appearance nor of the entry of an order. At the May term, 1940, the matter was set for trial on May 31st, and on that day, an order was entered showing its continuance until June 1st, when it was passed until June 2nd. On that day, the plaintiff appeared, filed his statement of account and the defendant being thrice called and not appearing, submitted the case to the court in lieu of a jury and a judgment was rendered in his favor for $152.09 together with costs.
On the nineteenth day of June, the defendant, Thorn, appeared and filed his motion in writing to vacate the judgment and his plea of the general issue. The motion to vacate was overruled and Thorn was granted a stay of ninety days on the filing of a bond containing the required condition in the penalty of two hundred dollars. The affidavits filed to sustain his motion to vacate having been made a part of the record by a bill of exceptions, a writ of error and supersedeas was granted by this Court October second.
As we view the record before us, the only question here involved is whether Code, 50-15-10, is to be regarded as mandatory, and if so, what constitutes a full compliance with its terms so that its mandatory effect is brought into operation.
The primary
purpose of the section referred to is to accelerate the disposal of appeals from the courts of justices of the peace. The amount in controversy being limited to three hundred dollars and the required appellate amount being but fifteen dollars, the accumulation of so-called legal "dead wood" upon the dockets of the appellate courts became so burdensome and involved that in 1931 the Revisers recommended the adoption of what is now Code, 50-15-10. It provides that if neither party brings the case to a hearing before the end of the second term at which it is called for trial, unless good cause for a continuance is shown, the court shall render judgment in favor of the party prevailing before the justice, to the...
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