State ex rel. Bika v. Ashworth
| Decision Date | 18 September 1945 |
| Docket Number | 9760. |
| Citation | 35 S.E.2d 351,128 W.Va. 1 |
| Parties | STATE ex rel. BIKA v. ASHWORTH, Judge, et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
In a civil case, pending in a circuit or other court of competent jurisdiction, on appeal from a judgment of a justice of the peace, regularly docketed and not brought to 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 judge of such court, under Code, 50-15-10, no good cause for continuance being shown, to render the judgment prescribed by the statute; and mandamus lies to require him to render such judgment.
George W. Williams, of Beckley, for petitioner.
W A. Thornhill, Jr., of Beckley, for respondents.
This proceeding in mandamus originated in this Court because of the refusal of the Judge of the Circuit Court of Raleigh County, by order entered May 23, 1945, in a civil action therein pending on appeal, to grant the motion of relator made at that time, to enter judgment in his favor to the same effect and for the same amount as the judgment rendered by the justice and for the costs of the appeal, against respondents Tony Pauletto and Constantino Gara, who signed the appeal bond. The action in which the appeal was pending in said court from the judgment of a justice of the peace of said county, rendered upon a claim involving unliquidated damages, on the 25th day of August, 1942, in favor of the relator, John Bika, Sr., against Tony Pauletto, for $221.10 and $4.75 costs, was regularly docketed for hearing at the regular November Term, 1942. The case is here upon the verified petition of relator, the joint demurrer thereto of all respondents, and their unverified answer to said petition. No brief was filed in this Court in behalf of respondents.
The petition invokes the relief claimed by relator under Ch. 50, Art. 15, Sec. 10 of the Code of West Virginia, which provides that if, after an appeal from the judgment of a justice of the peace, regularly placed upon the docket of the appellate court, neither party brings the case to a hearing before the end of the second term thereafter at which it is called for trial, the court, unless good cause for continuance be shown, shall render judgment in favor of the party prevailing before the justice, to the same effect and for the same amount as the judgment rendered by the justice and in addition, if the judgment was against the appellant the judgment of the appellate court shall be against the appellant and the signer of his bond and shall include the costs of the appeal. This statute first appears in the Code of 1931, and the primary purpose of the Legislature in enacting it was to expedite hearing and termination of appeals from the judgments of justices of the peace. Gibson v. Thorn, 122 W.Va. 716, 12 S.E.2d 535. Relator asserts that, by virtue of the statute, he is entitled to the rendition by the circuit court in which the appeal is pending of a judgment in his favor against the respondents Pauletto and Gara, the latter of whom signed the appeal bond, to the same effect and in the same amount as that rendered by the justice, including the costs of the appeal.
The answer of respondents to the petition is not under oath, as required by Ch. 53, Art. 1, Sec. 6 of the Code. Relator interposed no demurrer to the answer, but the omission of the verification is complained of in his brief, and he asks this Court to reject the answer. Defects of this character should be challenged by written demurrer, Code, 56-4-36, and the failure of the relator so to do waives the lack of a verification. Accordingly we have considered the allegations of the answer in the hearing of this proceeding.
From the allegations of the petition it appears that the appeal from the judgment rendered by the justice of the peace on August 25, 1942, was regularly docketed in the circuit court...
To continue reading
Request your trial