Walker v. May
| Decision Date | 29 March 1910 |
| Citation | 67 S.E. 786,67 W.Va. 316 |
| Parties | WALKER v. MAY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
If good grounds for the continuance of a cause be known to a party or his counsel, before trial, and no continuance is asked his motion after trial to set aside the verdict and judgment based on the same facts should be denied. To entitle a party to protection in such cases he should be diligent at every stage of the proceedings.
Error from Circuit Court, Cabell County.
Action by Frank Walker against John May. Judgment for plaintiff, and defendant brings error. Affirmed.
George S. Wallace, for plaintiff in error.
Blackwood & Saunders and J. W. Perry, for defendant in error.
The sole question for decision in this case is, did the court below err in refusing defendant a new trial?
The action is ejectment. The case was tried October 17, 1907, on defendant's plea of not guilty, and issue joined thereon resulting in a verdict for plaintiff; and the motion of defendant for a new trial being overruled, judgment on the verdict was on the same day pronounced in favor of the plaintiff.
Afterwards November 9, 1907, at the same term, the defendant, alleging surprise, again moved the court to set aside the verdict and award him a new trial. In support of his motion he filed his own affidavit and the affidavits of his son, Alva May, and of his attorney, M. B. Henderson.
The facts alleged in these affidavits as grounds for the motion controverted by no counter affidavits, are: That defendant had promptly appeared on the first filing of the declaration and notice, employed counsel, and entered his plea of not guilty; that two terms of court had elapsed without trial, at each of which defendant's interests had been looked after by his said son and attorney; that he being inexperienced in business, and residing some eighteen miles distant from the court house, had intrusted the preparation of his case for trial to his said son and attorney, and had not been advised of the setting of the case for trial, and the trial thereof on October 17, until October 19, 1907; that he has a good defense to the action, as he believes, which he wishes to make if he is granted a new trial; that at the beginning of the said October term, Blackwood, plaintiff's attorney, made an agreement with defendant's attorney, that he would have the case set down for trial, and would advise him of the day fixed, which he failed to do, and that defendant's attorney did not learn until October 15 that Blackwood, without notice, had on October 7 got the case set for trial on October 17; that Henderson first learned of this fact on going to the court house on October 15, when he at once procured subp nas for defendant's witnesses to be issued by the clerk, and mailed to the son in care of defendant, at Salt Rock, Cabell County, West Virginia, and at the same time had addressed a letter to the son, also a material witness, at Holden, Logan County, where he knew him to be at work, informing him what he had done, advising him of the day of trial, and to go to Salt Rock at once, serve the witnesses, and bring them in on the day set for the trial. Alva May says he went to the post office at Holden every...
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