Huffman v. Gwinn
| Decision Date | 25 October 1927 |
| Docket Number | (No. 5954) |
| Court | West Virginia Supreme Court |
| Parties | Nannie J. Huffman, Administratrix of Arlie Diehl, Dec'd. v. David Gwinn |
Appeal and Error Statute Requiring Appellant to Deposit Money for Printing Record Within Three Months After Case is Docketed in Appellate Court Held Mandatory (Code, c. 135, § 18).
Section 18, Chapter 135 Code, providing that if the appellant or plaintiff in error fail for three months after his case has been docketed in the Supreme Court of Appeals to deposit with the clerk of said Court a sufficient sum to pay for the printing of the record, he shall be deemed to have abandoned his appeal and the same shall be dismissed, is mandatory in requiring this Court upon motion to dismiss a writ of error for failure of plaintiff in error to comply with such requirement.
Error to Circuit Court, Greenbrier County.
Action by Nannie J. Huffman, administratrix of the estate of Arlie Diehl, deceased, against David Gwinn. Judgment for plaintiff, and defendant brings error.
Writ of error dismissed.
Thos. N. Read and Thomas L. Bead, for plaintiff in error. Bevercomb & Bevercomb, for defendant in error.
The defendant complains of a judgment for $2,000.00 against him in favor of the plaintiff for the death of decedent, an infant nine years old, resulting from his being struck by a Ford automobile owned and driven over a public road in Greenbrier County by the defendant.
The errors assigned involve, among other rulings of the trial court, the granting of an instruction in behalf of the plaintiff which authorized the jury to take into considera- tion as an element of damages the mental anguish and suffering of near relatives, caused by the death of decedent.
The judgment was entered upon the verdict July 30, 1926. The writ of error was allowed and docketed February 22, 1927. Plaintiff has moved to dismiss the writ because the defendant failed to comply with the statute and rule of this Court requiring an appellant or plaintiff in error to deposit with the clerk within three months from the docketing of the writ a sufficient sum to pay for printing the record. The defendant resists the motion upon the theory that the statute is not mandatory, offering as an excuse for the delay that he was adjudged a bankrupt March 23, 1927. Section 18, Chapter 135, Code, provides that if 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 and the same shall be dismissed; but it may be renewed at any time within six months from the date of the judgment, order or decree appealed from, according to the provisions of section three of this chapter."
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Gaines v. Stovall
... ... ***" 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 ... ...
- Gaines v. Stovall., (No. 7557)
- Gaines v. Stovall
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Worsham v. Hewlett., (No. 7667)
...his appeal or writ of error and the same shall be dismissed." The purpose of the foregoing statute, as pointed out in Huffman v. Gwinn, 104 W. Va. 328, 140 S. E. 50, 51, "is to prevent delay on the part of appellant or plaintiff in error in perfecting his appeal or writ." See also, Gaines v......