Perry v. Horn
| Decision Date | 30 June 1883 |
| Citation | 21 W.Va. 732 |
| Parties | PERRY v. HORN et al. |
| Court | West Virginia Supreme Court |
Submitted Jun. 20, 1882.
[a1]WOODS, JUDGE Absent.
1. If an appeal or a writ of error has been twice dismissed by this Court because of the failure of the appellant or the plaintiff in error to have the record printed, or to deposit the requisite money with the clerk of this Court to have the record printed within six months after the case has been docketed in this Court, the appellant or the plaintiff in error cannot have a third appeal or writ of error awarded to him. (p. 736.)
2. A case is held to be docketed in this Court within the meaning of the law requiring the printing of the record, or the deposit of the money with the clerk for that purpose within six months after the case is docketed in this Court from the day, on which the clerk of this Court issues the summons in the case. (p. 736.)
3. A case which has been dismissed by the Court may at a subsequent term be reinstated, if the case was dismissed because of surprise, accident or mistake But such equitable considerations cannot be considered by this Court in deciding, whether when a case has been previously dismissed once or oftener another writ of error or appeal can be granted. (p. 740)
Appeal from and supersedeas to a decree of the circuit court of the county of Wood, rendered on the 14th day of April, 1879, in a cause in said court then pending, wherein John W. Perry was plaintiff, and S. J. Horn and others were defendants, allowed upon the petition of said S. J. Horn.
Hon. J M. Jackson, judge of the fifth judicial circuit, rendered the decree appealed from.
GREEN JUDGE, furnishes the following statement of the case:
In July, 1878, J. W. Perry brought a suit in chancery in the circuit court of Wood county to subject certain real estate of the defendant, S. J. Horn, to the payment of a certain judgment and decree against S. J. Horn, and on April 19 1879, after various proceedings in the court and a report of the commissioner had been made pursuant to a decree of the court, the court ascertained and determined the liens against the real estate of S. J. Horn and their priorities; they being arranged by the court in nineteen classes. And the rents and profits of his real estate not being sufficient to pay the same in a reasonable time, the court among other things decreed, that unless these liens were paid within thirty days, that certain commissioners named should sell in the manner prescribed certain real estate of S. J. Horn. From this decree S. J. Horn obtained from a judge of this Court, in vacation, an appeal and supersedeas to the portion of the decree ordering the sale to be made on the 12th day of May, 1879. The penalty of the bond was fixed at one thousand seven hundred dollars. On June 17, 1879, a motion was made by the appellee to require the appellant, S. J. Horn, to execute a supersedeas-bond in a larger penalty, which motion was based on the fact, that the penalty of the bond was insufficient to cover the rents and profits pending the appeal. This Court heard the arguments of counsel for both the appellant and appellee upon this point, and being of opinion, that the obligors in such supersedeas-bond would not be responsible for the value of the rents and profits received by the appellant pending such appeal, refused to increase the penalty of said bond, and on June 26, 1879, overruled said motion. On April 24, 1880, the appellee, John W. Perry, moved this Court to dismiss the appeal and supersedeas in this cause on the ground, that although more than six months had elapsed since this cause was docketed in this Court, the appellant had failed to deposit with the clerk of this Court a sum sufficient to pay for printing the transcript of the record as required by law. After hearing the parties by their counsel, this Court on May 4, 1880, sustained this motion, and dismissed the appeal and supersedeas, but without prejudice to the rights and privileges of the appellant thereafter to apply for and obtain an appeal from said decree and a supersedeas to a portion of said decree in the manner and within the time prescribed by law.
On the 8th day of May, 1880, the appellant again presented his petition for a like appeal and supersedeas to a judge of this Court, in vacation, and it was again awarded, the penalty of the bond again being fixed at one thousand seven hundred dollars. The appellant, S. J. Horn, again failed to deposit with the clerk of this Court, within six months after the cause was again docketed in this Court, a sum sufficient to pay for printing the transcript of the record and on November 27, 1880, the appellee moved this Court to dismiss this cause for this reason. On December 18, 1880, after hearing the arguments of counsel and maturely considering the evidence presented on each side, the Court sustained the motion and dismissed this cause a second time at the cost of the appellant. There was in this order no provision such as had been inserted in the former order, that this dismissal was to be without prejudice to the right of the appellant thereafter to apply for and obtain a like appeal and supersedeas to said decree. On March 12, 1881, the said S. J. Horn, by his counsel, again for the third time filed his petition asking for an appeal from the said decree. This petition was presented to this Court in session, and as it asked for an appeal only and not for a supersedeas, this Court awarded the appeal, fixing the penalty of the bond at three hundred dollars, and stating at the time, that it doubted its authority to allow this third appeal, but that it would be allowed, and if when the case was submitted to this Court and the law examined this Court reached the conclusion, that it ought not to have granted this appeal, it would then be dismissed as improvidently awarded; and this cause was argued and submitted to this Court on June 19, 1882.
James Hutchinson for appellant.
W. L. Cole for appellee.
The first enquiry in this case is, whether the appeal should not be dismissed as improvidently awarded. We have decided during the present term of Court in Alois Casanova v. Peter Kreusch, supra, that where a writ of error and supersedeas has been dismissed because of the failure of the plaintiff in error to give a new bond with security when required so to do by this Court, the sureties in the first bond being insolvent, the plaintiff in error can not be awarded a writ of error without supersedeas on giving the bond required by law, and if this be done the writ of error will be dismissed as improvidently awarded. And the reasoning on which said conclusion was reached would forbid the granting of any writ of error or appeal, whether with or without supersedeas whenever this Court has dismissed for want of prosecution a former writ of error or appeal, except where it had been dismissed without prejudice to such second writ of error or appeal under the express provision of some statute, or where such second appeal or supersedeas was allowable under a fair construction of some statute-law. Chapter 172 of Acts of 1872-3, page 521 provides, " that should the appellant or plaintiff fail within six months after his case has been docketed in the Court of Appeals, to deposit with the clerk a sufficient amount 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 five years from the date of the judgment or decree appealed from." Of course, when the requisite money has not been deposited in the required time or the record printed, this Court under this law as a matter of course granted a second writ of error or appeal. The time allowed, within which to deposit this money for the printing of the record, is six months after the case has been docketed in this Court. This Court has decided, that the issuing by our clerk of the process is the time of docketing meant by the law.
We are now to determine, whether this law also authorizes this Court to issue a third or an indefinite number of appeals or writs of error from the judgment or decree, when writs of error or appeals have been repeatedly dismissed by the Court because of the failure to deposit with the clerk a sufficient sum to pay for the printing of the record within six months after the case is docketed.
The statute says, that " the case may be renewed at any time within five years from the date of the judgment, order or decree appealed from." Does this mean that it may be renewed once after such dismissal, or that it may be renewed an indefinite number of times provided only that the last of such renewals is within five years from the rendition of the judgment or decree appealed from? The language of the act would admit of either interpretation, and the construction to be put upon it must be that which most accords with the spirit of our laws, as interpreted by the Court in reference to the granting or refusing appeals or writs of error after a case has been dismissed by this Court for want of prosecution. The general spirit, which has pervaded the law in this country has been in opposition to the granting of a second appeal or writ of error, when the first has been dismissed for want of prosecution. This is shown by the decisions of the courts, some of which were reviewed in Casanova v. Kreusch, supr...
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