Long v. Ohio River R'y. Co.
| Decision Date | 28 November 1891 |
| Parties | Long v. Ohio River R'y. Co. |
| Court | West Virginia Supreme Court |
In applying to the Circuit Court for a writ of certiorari to the judgment of a justice, under chapter 110 of the Code, the general rule is that the petitioner must present his petition within ten days after the judgment complained of is rendered, according to the analogy of appeals in section 164, chapter 50, of the Code.
But it may, and in proper case should, be granted after the expiration of ten days, and within ninety days after the date of the judgment, when the party otherwise entitled to the writ shall show by his own oath or otherwise good cause for his not having applied for such writ within the ten days.
8. Certiorari Laches.
A case in which the above rule against laches is laid down and applied.
V. B. Archer for appellant, cited Code (1887) c. 42, s. 14; 9 W. Ya. 254, pt. 11 Syll; 15 W. Ya. 628; 17 W. Ya. 191; 9 W. Ya. 270; 25 W. Va. 570; 26 W. Ya. 455; 32 YY. Ya. 436; 51 Pa. St. 240; 67 N Y. 153; 27 111. 198; 55 111. 226; 85 111. 288; 88 111. 368; 39 Me. 274; 79 Mo. 504; 44 Ind. 444; 45 Ind. 91; 36 la. 102; 30 la. 459; 37 la. 422; 40 la. 292; 77 111. 160; 30.Minn. 18; 61 la. 323; 38 Ohio 410; 16 N. Y. 476; 6 111. 295; 22 Barb. 525; 32 Barb. 568; 29 Ind. 40; 30 Ind. 324; 72 Ind. 107; 78 Ky. 621; 25 W. Ya. 571; 27 Yt. 643; 16 Ill. 198; 30 111. 451; 40 la. 337; 14 Ind. 30; 50 Miss. 572; 26 Tex. 604; 42 Miss. 603; 35 Mich. 507; 33 Mo. 309; 4 Jones L. 432; 62 Mo. 562; 8 Nov. Ill; 7 Am. & E. R. R. Co's. 588, 590; 13 Id. 534; 2 Sher. & R. Neg. (4th Ed.) § 419; 23 Am. & E. R, R. Cas. 237; 19 Id. 480; 1 Am. Ref. 339.
Simpson & Howard for appellee, cited 24 W. Ya. 520; 25 W. Va. 577; Cooley Torts 673; 26 W. Ya. 457; 9 W. Ya. 270.
On the 28th of December, 1889, J. M. Long, plaintiff below and appellee, brought suit before a justice of Mason county against the Ohio River Railroad Company, the appellant, for the recovery of two hundred dollars, the value of one mare, the property of the plaintiff, killed by defendant on its railroad. The defendant appeared, and the case was fixed for trial to be had on January 31, 1890. Plaintiff demanded a jury, and a jury of six, having been duly selected and sworn, and having heard the evidence and received the instructions given by the justice at the instance of the defendant, and without objection by plaintiff, rendered a verdict for plaintiff, assessing his damages at two hundred dollars. Defendant at once moved the justice to set aside the verdict, and grant a new trial. The justice overruled the motion, and defendant excepted, and prayed that bill of exceptions No. 1 be signed, sealed, and made part of the record, "which bill of exceptions (quoting from the docket of the magistrate) has not been taken as yet," On the verdict, judgment was rendered. Under chapter 110, s. 4, of the Code, the judge of the Circuit Court of Mason county awarded defendant a writ of certiorari on 28th April, 1890, the day of defendant's application. On 15th May, 1890, plaintiff, Long, by his attorneys, moved the Circuit Court of Mason county to quash and dismiss the writ of certiorari upon the ground, as appears by the argument, that neither bill of exceptions nor writ of certiorari were applied for and obtained in due time, which motion was sustained; and the cause is here for review on writ of error obtained by defendant.
The counsel have argued the case mainly upon the merits.
The principal use of this writ with us before 1868 was to bring up records, in whole or in part, in aid of some other proceeding; but the statute of 1882-89, as now found in the Code, p. 761, c. 110, has very much enlarged its scope, giving power to rehear after judgment on the evidence certified, as well as correct errors in law, and in a proper case to retain for trial de novo, being thus in effect an appeal from the judgment of a jnstice in a certain class of cases. In obedience to the writ, the record should be certified and returned "in the condition in which it was when the writ came to the court below." "In all such cases removed as aforesaid from before a justice to the Circuit Court, wherein the amount in controversy is more than fifteen dollars, and in which the judgment of the justice is set aside (the case) shall be retained in said court, and disposed of as if originally brought therein." Section 3, c. 110, Code. It lay at common law in all civil actions before judgment, where the courts of king's bench and common pleas had jurisdiction, and could administer the same justice to the parties as the court below, and was there retained and tried. Under our statute, it lies after judgment, and the Circuit Court, after reversing the judgment complained of, retains it for final disposition if the amount in controversy is more than fifteen dollars. The petition for the writ should disclose a proper case upon its face, and when issued it may be dismissed without a hearing, when improvidently awarded.
But it is now under our statute a remedy of great importance, and constant use, and should be upheld and applied, within its proper scope, to the end of meting out substantial justice. In a proper case the writ may on motion be superseded before its return, as that it was improvidently awarded; and by motion to quash it may be quashed on any proper ground after the return. But the language of the motion is not material, so that it give notice of the thing asked to be done; nor the language of the order of the court, if it properly directs that it be done. "It should not be granted where the party seeking it has been guilty of laches, and generally, and in analogy to the writ of error" (or appeal) not where the time within which these latter could be brought has expired. See 3 Amer. & Eng. Enc. Law, p. 64, and authorities cited; Poe v. MachineWorks, 24 W. Ya. 517, 521 where the general doctrine of the writ as at common law, and as modified by our recent statute, is stated and discussed. See, also, 1 Tidd, Pr. 399. And, in cases where the party has permitted the time for appeal to expire, certiorari will not issue for relief unless upon a special showing unmixed with any blame on the part of such party. Poe v. Machine-Works, 24 W. Ya. 517.
Following the analogy here pointed out to appeals from justices under sections 164-174 of chapter 50 of the Code, as applied to like cases, the petition for the writ should be presented within ten days after the judgment is rendered...
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