Hudgins v. Crowder & Freeman, Inc.

• Decision Date: 12 September 1972
• Docket Number: No. 12974,12974
• Citation: 191 S.E.2d 443,156 W.Va. 111
• Court: West Virginia Supreme Court
• Parties: Paul HUDGINS v. CROWDER AND FREEMAN, INC., a corporation, and Ford Motor Company, a corporation.

Page 443

191 S.E.2d 443

156 W.Va. 111

Paul HUDGINS v. CROWDER AND FREEMAN, INC., a corporation, and Ford Motor Company, a corporation.

No. 12974.

Supreme Court of Appeals of West Virginia.

Submitted May 2, 1972.

Decided Sept. 12, 1972.

Syllabus by the Court

1. The provisions of Section 12 and Section 13, Article 4, Chapter 58 of Code, 1931, and Section 14, Article 4, Chapter 58 of Code, 1931, as amended, governing the requiring of and the giving of a bond upon an appeal from a court of record of limited jurisdiction to the circuit court of the county are mandatory and jurisdictional; and, except in such instances when an appeal, writ of error or supersedeas is proper to protect the estate of a decedent, convict or insane person, where it appears upon appellate review by this Court that bond was not fixed by the circuit court or that bond was not given as required by Code, 1931, 58--4--13, the appeal awarded by the circuit court to the judgment of a court of record of limited jurisdiction will be dismissed by this Court as improvidently awarded.

2. The provisions of Section 7, Article 4, Chapter 58 of Code, 1931, requiring the entry of an order by the circuit court granting or refusing an appeal, writ of error or supersedeas from a judgment of a court of record of limited jurisdiction is mandatory and jurisdictional; and, where it appears upon appellate review by this Court that the circuit court failed to enter an order granting or refusing the appeal, writ of error or supersedeas, an order by the circuit court purporting to be a final judgment setting aside the judgment of the court of record of limited jurisdiction is void and held for naught.

3. Courts of record can speak only by their records, and what does not so appear does not exist in law.

Hudgins, Coulling, Brewster & Cameron, L. R. Coulling, Jr., Bluefield, for appellant.

Kay, Casto & Chaney, George S. Sharp, Charleston, for appellee.

KESSEL, Judge:

This case is before the Court upon an appeal from a final judgment of the Circuit Court of Mercer County in a civil action instituted in the Intermediate Court of Mercer County by Paul Hudgins, hereinafter sometimes referred to in this opinion as the plaintiff or as the appellant, against Crowder & Freeman, Inc., a corporation, and Ford Motor Company, a corporation, the latter of which is hereinafter sometimes referred to in this opinion as the defendant or as the appellee. By its final judgment, the circuit court set aside the judgment of the Intermediate Court of Mercer County, which judgment was entered upon a jury verdict against the plaintiff Hudgins and in favor of the defendant Crowder & Freeman, Inc., and in favor of the plaintiff Hudgins and against Ford Motor Company, and remanded the case to the intermediate court for a new trial upon all the issues. Crowder & Freeman, Inc., did not appeal from the judgment of the circuit court, and Ford Motor Company is the sole appellee.

This Court granted the appeal on June 22, 1970, and the case was submitted for decision on May 2, 1972, upon briefs in writing and oral argument of counsel. On July 13, 1972, counsel for the plaintiff filed a motion to set aside the order of the Circuit Court of Mercer County and enter judgment upon the ground that the circuit court had no jurisdiction to set aside the judgment of the intermediate court and remand the case for a new trial. The motion was argued orally by counsel for both parties on July 25, 1972.

Counsel for the plaintiff allege in their motion that 'no order was entered by the Circuit Court granting the writ of error, as required by the Code of West Virginia 58--4--7; no summons was issued as required by the Code 58--4--11, no bond was given as required by the Code 58--4--13 and the Clerk of the Circuit Court did not make the endorsements required by the Code 58--4--12.'

Article 4, Chapter 58 of Code, 1931, as amended, establishes the procedure to be followed upon an appeal from a judgment of a court of record of limited jurisdiction. Section 3 provides as follows: 'Any person who is a party to any controversy in such court of limited jurisdiction, wishing to obtain a writ of error, appeal or supersedeas, may present a petition therefor to the circuit court of that county, or the judge thereof in vacation, which petition shall assign errors.' A pertinent portion of Section 6 provides:

'Such petition, together with a copy thereof, shall be first filed in the office of the clerk of the court of limited jurisdiction wherein the judgment, decree or order complained of was entered, and such clerk, retaining in his office the copy of such petition, shall, as soon as may be, transmit to the clerk of the circuit court the original, together with the record of so much of the case wherein the judgment, decree or order is as will enable the court or judge to whom the petition is to be presented properly to decide on such petition, and enable the court, if the petition be granted, properly to decide the questions that may arise before it. * * *'

This Court, upon its own motion pursuant to the provisions of Section 10 of Rule IV of the Rules of this Court, has examined the original record in this case filed in the office of the clerk of this Court. The original record does not disclose whether the petition to the circuit court for a writ of error was first filed in the office of the clerk of the intermediate court, nor does the original record reveal whether the original petition and the record of the case were transmitted by the clerk of the intermediate court to the clerk of the circuit court as required by Code, 1931, 58--4--6. The portion of the original record made in the intermediate court bears only the filing stamp of the clerk of the intermediate court and the filing stamp of the clerk of this Court. There is nothing in the original record to indicate whether the record made in the intermediate court was ever filed in the circuit court. An order of the circuit court, entered on April 3, 1969, reveals that the petition and the record were presented to the circuit court on that day by counsel for the defendant, but the order does not indicate that the circuit court directed that petition and the record be filed. Under the provisions of Article 4 of Chapter 58, Code, 1931, as amended, no such order was necessary. Chenoweth v. Settle Engineers, Inc., 151 W.Va. 830, 835, 156 S.E.2d 297, 300.

Section 7 of Article 4 of Chapter 58, Code, 1931, provides in part as follows: 'The circuit court or the judge thereof, upon consideration of the petition, shall enter an order granting or refusing it. * * *' No order, as required by Code, 1931, 58--4--7, was ever entered by the circuit court granting or refusing the writ of error. The only order entered by the circuit court in relation to the granting or refusing of the writ of error was an order, entered on March 21, 1970, by which the circuit court attempted to reverse the judgment of the intermediate court by ordering that the judgment be set aside and the case remanded to the intermediate court for a new trial upon all the issues. While the circuit court ordered that the judgment of the...