Webber v. Offhaus

• Citation: 135 W.Va. 138,62 S.E.2d 690
• Decision Date: 12 December 1950
• Docket Number: No. 10120,10120
• Court: Supreme Court of West Virginia
• Parties: WEBBER, v. OFFHAUS et al.

Page 690

62 S.E.2d 690

135 W.Va. 138

WEBBER, v. OFFHAUS et al.

No. 10120.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 3, 1950.

Decided Dec. 12, 1950.

Syllabus by the Court.

1. Under Section 1, Rule IV of the Rules of Practice of this Court, which does not apply to cases of felony, an appeal or a writ of error will not be dismissed if the appellant or the plaintiff in error, either deposits with the clerk of this Court, within three months after the case has been docketed in this Court, a sum sufficient to pay for printing the transcript of the record, or himself causes such transcript to be printed and eighteen copies thereof to be filed in the office of the clerk within three months after the case has been so docketed. If the deposit is made within the required period of three months, the transcript of the record will be printed under the supervision of the clerk and filed by him in his office, and this may be done after the expiration of the period of three months from the time the case has been docketed.

2. Under the provisions of Section 4, Article 2, Chapter 58, Code, the court in which there is a judgment by default or a decree on a bill taken for confessed, or the judge of such court in vacation, has jurisdiction, on motion, to reverse such judgment or decree for any error for which an appellate court might reverse it, and to give such judgment or decree as ought to be given; but, in the absence of such error in such judgment or decree, a motion to reverse should be denied.

3. 'When a court of equity takes jurisdiction of a cause for one purpose, it will ordinarily dispose of the questions involved to avoid a multiplicity of suits.' Point 1, Syllabus, Lay v. Phillips, 116 W.Va. 60 .

4. When a court of equity has rightfully acquired jurisdiction of a cause in which the facts existing at the time it is instituted entitled the plaintiff to relief in equity, such jurisdiction will not be defeated by subsequent events which render such relief unnecessary and, when necessary or proper to a final determination of the issues involved, the court may ascertain and award damages which result from the wrong which forms the basis for equitable relief.

Joseph J. Madden, Elkins, for appellant.

Arnold, Crawford & Hyer, Elkins, for appellees.

HAYMOND, Judge.

This suit in equity was instituted in the Circuit Court of Randolph County by the plaintiff, S. F. Webber, to enjoin the defendants, Otto Offhaus, Ralph Phillips, Hoy Phillips, George Phillips, Sr., and Earl Miller, from cutting and removing timber, and to recover damages for timber cut and removed, from land owned by the plaintiff located in that county. The defendants other than the defendant, Offhaus, resided, and were served with process, in Randolph County, and the defendant, Offhaus, a resident of Barbour County, was served with process in that county. The suit, instituted on February 8, 1946, was continued from time to time and no decree was entered until November 19, 1947. On that day the case was heard upon the verified bill of complaint of the plaintiff and evidence introduced in his behalf. None of the defendants filed an answer to the bill of complaint and none of them appeared in the case until after it was heard on November 19, 1947, at which time a decree for the plaintiff was entered. The plaintiff did not then ask for or obtain an injunction, and on November 19, 1947, on motion of the plaintiff, the court dismissed the suit as to the defendants Ralph Phillips, Hoy Phillips, George Phillips, Sr., and Earl Miller, and entered a decree in favor of the plaintiff against the defendant, Otto Offhaus, for $536.00, with interest and costs.

On February 17, 1948, the defendant, Otto Offhaus, pursuant to written notice, moved the court, under the provisions of Sections 4, 5 and 6, Article 2, Chapter 58, Code, 1931, to set aside and reverse the decree of November 19, 1947, for errors apparent in that decree. The plaintiff answered and denied the grounds assigned in the motion. By final decree entered March 19, 1948, the court sustained the motion of the defendant, Otto Offhaus, hereinafter sometimes referred to as the defendant, set aside and reversed the decree of November 19, 1947, dismissed the suit for lack of equitable jurisdiction, but without prejudice, and entered judgment against the plaintiff for costs. From that decree the plaintiff obtained an appeal to this Court.

The plaintiff contends, in substance, that there was no error in the decree of November 19, 1947; that the motion to reverse the decree was not authorized by any statute; that the circuit court had and retained jurisdiction in equity to entertain and determine this suit; that the circuit court had jurisdiction of the suit and did not lose such jurisdiction because no injunction was issued or because of the dismissal of the Randolph County defendants; and that the circuit court erred in setting aside and reversing the decree of November 19, 1947, and in dismissing this suit at the cost of the plaintiff by the final decree of March 19, 1948.

Before considering the questions presented by the plaintiff's assignments of error it is necessary to determine the motion of the defendant to dismiss this appeal on the ground that it has been abandoned by the plaintiff because of delay in filing the printed record. In support of the motion to dismiss, the defendant contends that the plaintiff has failed to comply with the requirements of Section 1, Rule IV of the Rules of Practice of this Court. That section of the rule provides that if the appellant or the plaintiff in error, except in cases of felony, shall fail to deposit with the clerk of this Court within three months after the case has been docketed in this Court, a sum sufficient to pay for printing the transcript of the record, or shall fail to have the transcript of the record printed and eighteen copies filed in the clerk's office within three months after the case has been docketed, the appeal or the writ of error shall be dismissed.

This appeal was granted on November 29, 1948, and on February 26, 1949, within three months from the time it was docketed, the plaintiff deposited with the clerk of this Court the amount required to pay for printing the record. It appears from the answer filed by the plaintiff in opposition to the motion that unsuccessful compromise negotiations were carried on between the parties for several months, that after they ended the transcript was sent to the clerk and filed by him on May 16, 1950, and that on May 23, 1950, eighteen printed copies of the record were filed in his office.

The rule in question is based upon two sections, 17 and 18, Article 5, Chapter 58 of the Code, 1931, and it provides two methods for printing the record. One method, dealt with by Section 17 of the statute and the first part of the rule, is that when a sum sufficient to pay for printing the record is deposited with the clerk within three months after an appeal or a writ of error has been docketed, the clerk, not the party, is required to have the record printed. If the deposit is made within the three months' period, no limit in time is fixed by the rule or the statute for printing and filing the printed record, the responsibility for which is placed upon the clerk, and any delay upon his part may be expedited or controlled by this Court. The other method, dealt with by Section 18 of the statute and the second part of the rule, is that the party who obtains the appeal or the writ of error may himself cause the transcript of the record to be printed. If he proceeds by this method he must pay the clerk's fee for comparing the record and file eighteen printed copies in the clerk's office. The statute does not fix any time within which this must be done, but the rule provides that unless the printed copies are filed within three months after the appeal or the writ of error is docketed, the appeal or writ of error shall be dismissed. The appeal or the writ of error is docketed, within the meaning of the statute and the rule, on the day on which the clerk receives in his office the petition bearing a notation of allowance by this Court, or a judge in vacation. Worsham v. Hewlett, 114 W.Va. 616, 173 S.E. 78.

The rule, properly interpreted, means that if the party who obtains the appeal or the writ of error, in any case to which the rule applies, deposits with the clerk of this Court, within three months from the time the summons is issued, a sum sufficient to pay for printing the record, the record shall be printed under the supervision of the clerk and that, when the record is printed under his supervision, it may be printed and filed after three months from the time of allowance; but that, if the party does not make the deposit with the clerk and instead himself causes the record to be printed, it must be printed and filed within the three months' period. As the plaintiff and appellant deposited the sum required to pay for printing the record within the specified time, and as the subsequent delay in printing and filing the record resulted from compromise negotiations between the parties and does not indicate any intention of the plaintiff and appellant to abandon the appeal, the requirement of the rule with respect to the deposit and the printing of the record, under the supervision of the clerk, has been complied with; and the motion to dismiss the appeal must be, and it is, denied.

The statute on which the defendant bases his motion to set aside and reverse the decree of November 19, 1947, and on which he relies, Sections 4 and 6, Article 2, Chapter 58, Code, 1931, provides, in Section 4, that 'The court in which there is a judgment by default, or a decree on a bill taken for confessed, or the judge of such court in vacation thereof, may, on motion, reverse such judgment or decree for any error for which an appellate court might reverse it, if section seven of this article were not enacted, and...