Scott v. Coil
| Decision Date | 23 April 1912 |
| Citation | 70 W.Va. 777 |
| Court | West Virginia Supreme Court |
| Parties | Scott v. Coil & Coke Railway Co. |
Appeal and Error Dismissal Failure to Perfect Proceedings.
Failure to perfect an appeal, writ of error or supersedeas by giving the bond required by law and the order of the court or judge, awarding it, within one year and two months from the date of the judgment, decree or order involved, makes it the mandatory duty of the appellate court, under section 17 of chapter 135 of the Code, to dismiss the appeal, writ of error or supersedeas, although the bond has been given after the expiration of such period.
Error to Circuit Court, Randolph County. Action by Cora L. Scott against the Coal & Coke Railway Company. Judgment for defendant and plaintiff brings error.
Dismissed.
C. H. Scott and H. 0. Kump, for plaintiff in error.
E. A. Bowers and Price, Smith, SpUman & Clay, for defendant in error.
poffenbarger, judge:
The interpretation of section 17 of chapter 135 of the Code, as amended by chapter 39 of the Acts of 1909, arises on a motion to dismiss this writ of error, on the ground of failure to perfect it within the statutory period. Final judgment was rendered November 25, 1909:; the petition for the writ of error was presented November 25, 1910; the writ of error was allowed and the summons issued November 25, 1910; an alias summons, issued May 2, 1911, was served May 5, 1911; and the bond was given before the clerk of the circuit court on the clay of the service.
The presentation of the petition was admittedly within the period allowed by section 3 of chapter 135 of the Code; but, as the bond was not given until more than one year and two months after the date of the judgment, section 17 of said chapter is relied upon as requiring dismissal. The applicable portion of that section reads as follows: "No process shall issue upon any appeal, writ of error or supersedeas allowed to or from a final judgment, decree or order, if when the record is delivered to the clerk of the appellate court there shall have elapsed, one year and two months since the date of such final judgment, decree or order, but the appeal, writ of error or supersedeas shall be dismissed whenever it appears that one year and two months have elapsed since the said date before the record is delivered to such clerk, or before such bond is given, as is required to be given before the appeal, writ of error or supersedeas takes effect." Whether the last clause of the provision here quoted is independent and merely requires dismissal for failure to give the bond, or requires dismissal for failure to give it within one year and two months from the date of the judgment, is the question. Though the disjunctive "or" is used, it is followed by the word "before," which necessarily relates to time. The provision says not that the appeal, writ of error or supersedeas shall be dismissed for failure to give the bond, but that it shall be dismissed whenever it appears that one year and two months have elapsed since the date of the final judgment, decree or order before such bond is given. To give it the former meaning, it would be necessary to substitute, for the...
To continue reading
Request your trial