Powers v. Trent, Nos. 9821, 9821 A.

• Court: Supreme Court of West Virginia
• Writing for the Court: HAYMOND
• Citation: 40 S.E.2d. 837
• Parties: POWERS et al. v. TRENT et al. WATKINS et al. v. SAME.
• Docket Number: Nos. 9821, 9821 A.
• Decision Date: 17 December 1946

40 S.E.2d. 837

POWERS et al.
v.
TRENT et al.
WATKINS et al.
v.
SAME.

Nos. 9821, 9821 A.

Supreme Court of Appeals of West Virginia.

Dec. 17, 1946.

[40 S.E.2d. 837]Syllabus by the Court.

1. The existence of good cause, required by Code, 50-15-10, for the continuance of a case pending on appeal in a court of record from the judgment of a justice of the peace, when such case, after the appeal is regularly placed upon the docket, has not been brought to a hearing by either party before the end of the second term thereafter at which it is called for trial, must be established by the record of such court, and other evidence to show the existence of good cause, introduced subsequent to the continuance, can not be considered.

2. Courts of record can speak only by their record and what does not so appear does not exist in law.

3. In a civil case, pending in a court of record, on appeal from a judgment of a justice of the peace, regularly docketed and not brought to a hearing by either party before the end of the second term thereafter at which it is called for trial, it is the duty of the court, under Code, 50-15-10, no good cause for a continuance being shown, to render judgment in favor of the party prevailing before the justice of the peace to the same effect and for the same amount as the judgment rendered by the justice of the peace and judgment for the costs of the appeal.

Error from Circuit Court of Raleigh County.

Actions by M. W. Powers and another and by G. A. Watkins and another against C. D. Trent, doing business as C. D. Trent

[40 S.E.2d. 838]

Undertaking Company, and another. Judgments were rendered for the plaintiffs against both defendants in both cases and appeals were taken by the named defendant to the circuit court. To review judgments of the circuit court to the same effect as the judgment entered by the justice of the peace, the named defendants bring error.

Judgments affirmed.

J. M. Ellis, of Oak Hill, and Ashworth & Sanders, of Beckley, for plaintiffs in error.

Geo. W. Williams and Scherer, Bowers & File, all of Beckley, for defendants in error.

HAYMOND, Judge.

These cases are here on writs of error to a separate judgment entered in each case by the Circuit Court of Raleigh County, West Virginia. By agreement of the attorneys representing the respective parties, and by leave of this Court, the cases have been heard together upon a single record which presents the issues in each case.

The action in which G. A. Watkins and M. W. Powers are plaintiffs and C. D. Trent, doing business as C. D. Trent Undertaking Company, and Ash Mankin, administrator of the personal estate of Willie Lowe, deceased, are defendants, was instituted July 7, 1941, before a justice of the peace of Raleigh County, West Virginia. On August 29, 1941, judgment was rendered for the plaintiffs against both defendants for $300.00, with interest and costs. An appeal was taken by the defendant, Trent, September 4, 1941, and the case was placed upon the docket and duly matured for trial at the ensuing regular February term, 1942, of the court. The case was continued at that term of court and at each of the three successive regular terms thereafter until the regular February term, 1943. No order of continuance indicating the reason for continuing the case was entered by the court. The only showing as to these continuances consists of a notation on the trial docket of the court that the case was continued.

The action in which M. W. Powers and G. A. Watkins are plaintiffs, and C. D. Trent, doing business as C. D. Trent Undertaking Company, and Ash Mankin, ad ministrator of the personal estate of William P. Burkes, deceased, are defendants, was instituted September 10, 1941, before a justice of the peace of Raleigh County, West Virginia. On January 20, 1942, judgment was rendered for the plaintiffs against both defendants for $300.00, with interest and costs. An appeal was granted February 26, 1942, to the defendant, Trent, by the Judge of the Circuit Court of Raleigh County, and the case was placed upon the docket and duly matured for trial at the ensuing regular May term, 1942, of the Circuit Court. The case was continued at that term of court and at each of the two successive regular terms thereafter until the regular February term, 1943. No order of continuance indicating the reason for continuing the case was entered by the court. The only showing as to these continuances consists of a notation, on the trial docket of the court, that the case was left open at the regular May term, 1942, and continued at the regular August and November terms, 1943.

On March 20, 1943, during the regular February term, 1943, the plaintiffs in both actions filed their motions that the judgment entered in each case by the justice be reinstated. Pending action on these motions, the cases, by agreement, having been submitted together and as one case, were again continued from time to time. Evidence was introduced by the defendant, Trent, to support his contention that good cause existed for the continuances prior to the regular February term, 1943, which is certified by bills of exceptions as a part of the record in these cases. On October 6, 194S, the plaintiffs again entered their motions that the court render judgment in their favor, to the same effect and for the same amount as the judgment rendered by the justice of the peace in each action. On December 5, 1945, the court sustained the motions of the plaintiffs and entered such judgment in their favor in each case.

While the foregoing motions of the plaintiffs were pending, and in defense to the motions,...