Johnson v. Rldgley.
| Decision Date | 24 March 1908 |
| Citation | 64 W.Va. 130 |
| Parties | Johnson v. Rldgley. |
| Court | West Virginia Supreme Court |
1. Justices of the Peace Failure to Appeal Application to Circuit Court Sufficiency.
A petition to the circuit court for appeal from the judgment of a justice, alleging "that for a long time befo re" the date of said judgment the wife of petitioner "had been seriously ill and in consequence thereof he was compelled to have her go to the hospital at Columbus, Ohio, there to undergo an operation for a disease with which she was then afflicted, and that in consequence of her sickness your petitioner failed to appear before said justice and was prevented from appearing, and in consequence thereof was prevented from taking an appeal from the judgment of the justice aforesaid within ten days after the rendition thereof," and "that he would have taken his appeal within the ten days **had he not been prevented therefrom as aforesaid," does not show the good cause required by section 174, chapter 50, Code, the essential facts necessary to show such cause not being alleged. (pp.131, 132.)
Error to Circuit Court, Cabell County.
Action by J. W. Johnson, agent, against J. F. Ridgely. Judgment for defendant, and plaintiff brings error.
Reversed.
Switzer & Wiatt, for plaintiff in error.
L. L. Wilson and George I. Neal, for defendant in error.
In his petition to the circuit court for an appeal from the judgment of a justice the defendant alleged "that for a long time before" February 2, 1904, the return day of the process and the date of the judgment," his wife had been seriously ill and in consequence thereof he was compelled to have her go to the hospital at Columbus, Ohio, there to undergo an operation for a disease with which she was then afflicted, and that in consequence of her sickness your petitioner failed to appear before said Justine and was prevented from appearing, and in consequence thereof was prevented from taking an appeal from the judgment of the justice aforesaid within ten days after the rendition thereof;" and "that he would have taken his appeal within the ten days had he not been prevented therefrom as aforesaid." The petition was presented to the judge April 1, 1904, in vacation, and the appeal awarded; the defendant's motion before the justice on February 16, 1904, after motion, to set aside the judgment, having been overruled. On August 5, 1905, at a subsequent term, the motion of the plaintiff to dismiss this appeal was overruled the court, as the order recites, being of opinion that "from the petition of the plaintiff duly sworn to, the said J. F. Ridgley is entitled to said appeal within ninety days from February 2, 1904, and after the expiration of ten days from the rendition of said judgment, by reason of the matters alleged in said petition." On the trial in the circuit court, January 5, 1906, there was a verdict and judgment for the defendant. The errors assigned here are: (1) that said appeal was improvidently awarded; (2) the refusal of the court by order of August 5, 1905, to dismiss it.
It is apparent from its order that the action of ...
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