State ex rel. Peery v. Davis, No. 10379

• Court: Supreme Court of West Virginia
• Writing for the Court: HAYMOND; The petitioner, W. R. Peery, in this original proceeding in this Court, seeks to prohibit the respondent, the Honorable Staige Davis
• Citation: 65 S.E.2d 291,135 W.Va. 824
• Parties: STATE ex rel. PEERY, v. DAVIS, Judge.
• Docket Number: No. 10379
• Decision Date: 22 May 1951

Page 291

65 S.E.2d 291 135 W.Va. 824 STATE ex rel. PEERY,
v.
DAVIS, Judge. No. 10379. Supreme Court of Appeals of West Virginia. Submitted April 11, 1951.
Decided May 22, 1951.

Page 292

Syllabus by the Court.

1. Under the provisions of Section 9, Article 15, Chapter 50, Code, an appeal from the judgment of a justice in a civil action is regularly on the docket for the next regular term of the court to which such appeal is taken, within the meaning of Section 10, Article 15, Chapter 50, Code, when the transcript and the papers in such case are received and filed with the clerk of such court, even though such term of such court begins less than thirty days after such transcript and papers are filed with such clerk.

2. The court in which an appeal from the judgment of a justice in a civil action is pending is not required, by Section 10, Article 15, Chapter 50, Code, to render the same judgment as that rendered by the justice unless such appeal is regularly placed upon the docket and unless neither party, without showing good cause for a continuance, brings the case to a hearing before the end of the second term thereafter at which it is called for trial.

3. When it appears that an appeal from a judgment of a justice in a civil action is not within the provisions of Section 10, Article 15, Chapter 50, Code, and that the court in which such appeal is pending, having jurisdiction of the parties and the subject matter of such appeal, has set aside a judgment in favor of the party prevailing before the justice and has reinstated the case upon its docket and continued it until a subsequent term, all by order entered during the same term at which such judgment was rendered, a writ of prohibition will not lie to prohibit such court from acting or proceeding further in such case.

[135 W.Va. 825] Benjamin A. Ritchie, Charleston, for relator.

Simms & Simms, and Philip R. Simms, all of Charleston, for respondent.

HAYMOND, Judge.

The petitioner, W. R. Peery, in this original proceeding in this Court, seeks to prohibit the respondent, the Honorable Staige Davis, Judge of the Court of Common Pleas of Kanawha County, West Virginia, from acting or proceeding in a civil action pending on appeal in that court from the judgment of a justice of the peace in which

Page 293

the petitioner is plaintiff and Robert E. Hall is defendant, other than to render judgment in favor of the petitioner for $300 and costs and damages against the defendant Hall and the surety on the appeal bond filed in such action. A rule was issued by this Court returnable April 10, 1951, and on that day this proceeding was heard and submitted for decision upon the petition, the answer of the respondent, certain orders of the Court of Common Pleas entered October 16, 1950, and January 17, 1951, respectively, made a part of the record by written stipulation, and the briefs and the oral arguments of the attorneys in behalf of the respective parties.

At the trial, on February 1, 1950, of a civil action instituted before a justice of the peace of Kanawha County by the petitioner against Robert E. Hall, judgment in favor of the petitioner was rendered by the justice for $300 with interest and costs against Hall, who immediately filed an appeal bond, which was signed by him and by Hayden Walker as his surety, and obtained an appeal to the Court of Common Pleas. On February 10, 1950, the clerk of that court received in his office the transcript and the papers in connection with the appeal from the justice and placed the case upon the docket of the regular February Term of the Court of Common Pleas, which began on February 20, 1950. On the first day of that term of that court, the case, being on the docket, [135 W.Va. 826] was called for trial. Neither party entered any appearance, either in person or by counsel, and nothing was done in the case, other than to continue it, at that term of court. The case remained upon the docket of the court at its next regular term in June, 1950, and at that term, according to the allegations of the petition and of the answer of the respondent, the appeal cases upon the docket were in fact not called for trial for the reason that the formal calling by the clerk of the docket of those cases was dispensed with by the court, upon motion of members of the bar present at the time, in order to conserve time and to enable the clerk to set for trial at that term any appeal cases which parties in interest had requested him to set for trial. The clerk was not asked by either party to set the case for trial and it was not brought to trial or hearing, but was again continued, at that term of the court. At the next regular term of the Court of Common Pleas, in October, 1950, that having been the third regular term after the case had been docketed, the defendant Hall not having appeared in the case after it had been appealed, the court, on October 16, 1950, rendered judgment in favor of the petitioner to the same effect and for the same amount as the judgment rendered by the justice and for costs and damages against Hall and Walker, the surety who signed the appeal bond. By letter dated October 23, 1950, the attorney for the petitioner informed Hall of the entry of the judgment and made demand upon him for payment. Hall ignored this demand and later during the same term of court filed a petition and an amended petition in each of which he asked the court to set aside the judgment rendered on October 16, 1950, to reopen the case, and to set it for trial. Petitioner Peery filed his written demurrer to each petition of the defendant Hall and the court, by order entered January 17,...