John Gibson v. Henry Thorn, 9021

Decision Date14 December 1940
Docket NumberNo. 9021,9021
CourtWest Virginia Supreme Court
PartiesJohn Gibson v. Henry Thorn

122 W.Va. 716

John Gibson
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 having been made a part of the record by a bill of exceptions, a writ of error and...

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