John Gibson v. Henry Thorn, No. 9021

CourtSupreme Court of West Virginia
Writing for the CourtKENNA.
Citation122 W.Va. 716
PartiesJohn Gibson v. Henry Thorn
Decision Date14 December 1940
Docket NumberNo. 9021

122 W.Va. 716

John Gibson
v.
Henry Thorn

No. 9021

Supreme Court of Appeals of West Virginia.

Submitted October 8, 1940.
Decided December 14, 1940.


[122 W.Va. 716]

Appeal and Error

Under Code, 50-15-10, a case shown to have been on the docket of the appellate court is, after the expiration of the term for which the docket was compiled and in the absence of a showing to the contrary, presumed to have been called for trial during that term.

Error to Circuit Court, Barbour County.

Action by John Gibson against Henry Thorn for $300, wherein the defendant filed a counterclaim. To review a judgment for plaintiff, defendant brings error.

Reversed; remanded.

Dayton R. Stemple, for plaintiff in error.

William T. George, Jr., for defendant in error.

Kenna, Judge:

This proceeding originated in the court of a justice of the peace in Barbour County. The plaintiff, John Gibson, sued Henry Thorn for $300.00. 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 counter-claim filed by the defendant. On the same day, the plaintiff filed an appeal bond before the justice with approved sureties

[122 W.Va. 717]

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...

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14 practice notes
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • January 12, 1966
    ...to overcome affirmatively the strong presumption of regularity and requirements for consideration in such cases. Gibson v. Thorn, 122 W.Va. 716, 12 s.E.2d 535; State ex rel. Powers v. Boles, 194 W.Va. 6, 138 S.E.2d 159; 39 C.J.S. Habeas Corpus § 100, page 680; Code, 53-4-6, as amended, and ......
  • State ex rel. Peery v. Davis, No. 10379
    • United States
    • Supreme Court of West Virginia
    • May 22, 1951
    ...presumption that the case was regularly called for trial. Maryland Trust Company v. Gregory, W.Va., 56 S.E.2d 378; Gibson v. Thorn, 122 W.Va. 716, 12 S.E.2d 535. Allegations in the petition and in the answer of the respondent, however, clearly show that the case was in fact not called for t......
  • Powers v. Trent, Nos. 9821, 9821 A.
    • United States
    • Supreme Court of West Virginia
    • December 17, 1946
    ...generally existed, for various insufficient reasons, in cases of this kind, in the trial courts of this State. Gibson v. Thorn, 122 W.Va. 716, 12 S.E.2d 535. Under the present statute, only continuances for the two regular terms immediately following the docketing of the appeal may be had, ......
  • State ex rel. Powers v. Boles, No. 12351
    • United States
    • Supreme Court of West Virginia
    • September 29, 1964
    ...to the law is that until the contrary appears, courts are presumed to have correctly followed the required routine.' Gibson v. Thorn, 122 W.Va. 716, 719, 12 S.E.2d 535, 537. 'There is a strong presumption in favor of the regularity of court proceedings and the burden is on the person who al......
  • Request a trial to view additional results
14 cases
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • January 12, 1966
    ...to overcome affirmatively the strong presumption of regularity and requirements for consideration in such cases. Gibson v. Thorn, 122 W.Va. 716, 12 s.E.2d 535; State ex rel. Powers v. Boles, 194 W.Va. 6, 138 S.E.2d 159; 39 C.J.S. Habeas Corpus § 100, page 680; Code, 53-4-6, as amended, and ......
  • State ex rel. Peery v. Davis, No. 10379
    • United States
    • Supreme Court of West Virginia
    • May 22, 1951
    ...presumption that the case was regularly called for trial. Maryland Trust Company v. Gregory, W.Va., 56 S.E.2d 378; Gibson v. Thorn, 122 W.Va. 716, 12 S.E.2d 535. Allegations in the petition and in the answer of the respondent, however, clearly show that the case was in fact not called for t......
  • Powers v. Trent, Nos. 9821, 9821 A.
    • United States
    • Supreme Court of West Virginia
    • December 17, 1946
    ...generally existed, for various insufficient reasons, in cases of this kind, in the trial courts of this State. Gibson v. Thorn, 122 W.Va. 716, 12 S.E.2d 535. Under the present statute, only continuances for the two regular terms immediately following the docketing of the appeal may be had, ......
  • State ex rel. Powers v. Boles, No. 12351
    • United States
    • Supreme Court of West Virginia
    • September 29, 1964
    ...to the law is that until the contrary appears, courts are presumed to have correctly followed the required routine.' Gibson v. Thorn, 122 W.Va. 716, 719, 12 S.E.2d 535, 537. 'There is a strong presumption in favor of the regularity of court proceedings and the burden is on the person who al......
  • Request a trial to view additional results

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