Higgs v. Cunningham

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

77 S.E. 273

71 W.Va. 674

HIGGS v. CUNNINGHAM.

Supreme Court of Appeals of West Virginia.

January 28, 1913

Submitted September 12, 1911.

Syllabus by the Court.

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.

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.

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 had actual knowledge of the fact heard that statement but still left the record of the presence of plaintiff by his attorney to stand and the fact of his presence to become foreclosed. We can not at all presume that the court would have done this if the fact were otherwise than the record states it.

The trial court also overruled the ground that the case was called up out of its order. That court knew the fact in this particular also. We must assume that it dealt rightly in relation thereto. Nothing in the record shows the contrary.

As to the other ground, ordinarily plaintiff would not have the right to file a replication any time during the term. At the time of the dismissal, he had had full time and opportunity to reply. Two rule days at which he could have filed the replication had elapsed. He still could have filed it in term up to the time of dismissal. As the record comes to us, he remained in default in this behalf.

There is absolutely nothing in the record to sustain the grounds on which plaintiff relied to set aside the dismissal. Plaintiff offered no affidavit or other thing in support of these grounds. Then, can we say that the court erred in overruling them? The presumption is that the court acted rightly. But plaintiff seems to insist that because he desired to reply before the term closed, it was error to deny him leave to do so. We can not justly say that the court erred...