Higgs v. Cunningham

• Court: Supreme Court of West Virginia
• Writing for the Court: ROBINSON
• Citation: 77 S.E. 273,71 W.Va. 674
• Parties: HIGGS. v. CUNNINGHAM.
• Decision Date: 28 January 1913

77 S.E. 273
71 W.Va. 674

HIGGS.
v.
CUNNINGHAM.

Supreme Court of Appeals of West Virginia.

Jan. 28, 1913.

[77 S.E. 273](Syllabus by the Court.)

1. Appeal and Error (§ 957^*) — Review — Discretion of Trial Court—Ruling on Motion to Raise Default.

Where a plaintiff stands by and voluntarily suffers a default and dismissal, by failure to reply to defendant's plea, the court has discretion to refuse to raise the default at a later time in the absence of excuse by the plaintiff, and that discretion can not be reversed on appeal, when the record affords nothing to show abuse of the same.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3823; Dec. Dig. § 957.*]

2. Dismissal and Nonsuit (§ 81*) — Vacation—Discretion of Court.

Code 1906, c. 127, § 11, does not peremptorily require every dismissal or nonsuit to be set aside simply because the court is asked to do so. The court has a sound discretion in the premises.

[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 182-192; Dec. Dig. § 81.*]

Error to Circuit Court, Randolph County.

Action by Wilson B. Higgs against A. M. Cunningham. Judgment for defendant, and plaintiff brings error. Affirmed.

C. H. Scott, of Elkins, for plaintiff in error. A. R. Stallings, of Elkins, and H. H. McCormick, of Charlestown for defendant in error.

ROBINSON, J. To plaintiff's action of trespass on the case for malicious prosecution, defendant pleaded in abatement the pendency of another suit for the same cause of action, between the same parties, instituted in another county prior to the suing out of the writ in the action to which the plea was filed. The plea in abatement was filed at the rules at which plaintiff filed his declaration. To this plea plaintiff did not reply at either of two rule days that intervened before the next term of the court. At that term, the court dismissed the suit on the plea in abatement as to which there was no reply. The order recites the presence of plaintiff, by his attorney, at the time of this dismissal. He joined no issue on the plea in abatement, but suffered the case to be dismissed because of his failure to reply. The order plainly shows his failure to prosecute. He took no exception to the dismissal.

Ten days thereafter, at the same term, plaintiff again appeared to the action and moved to set aside the order of dismissal and to be permitted to file a replication to the plea in abatement. Upon the objection of defendant, the court overruled the motion. Plaintiff reserved exceptions covering the action of the court in overruling the motion. He has prosecuted this writ of error to the Judgment of the court in that particular.

The bill of exceptions shows that plaintiff moved to set aside the dismissal and to be permitted to file a replication to the plea in abatement "upon the ground that the case was called up out of its order, in the absence of the plaintiff and without his knowledge or presence of his counsel and dismissed, and upon the further ground that he had the right to enter the said replication during the said term of court."

Now, the record shows plaintiff's attorney to have been present and to have allowed the suit to go without further prosecution. That record is a verity. We can not overthrow it on the mere statement of the ground for the motion. The trial court which...