Worsham v. Hewlett., (No. 7667)

• Decision Date: 20 February 1934
• Docket Number: (No. 7667)
• Citation: 114 W.Va. 616
• Court: West Virginia Supreme Court
• Parties: Earl S. Worsham, doing business as Worsham Brothers v. Cecil Hewlett et al.

114 W.Va. 616

Earl S. Worsham, doing business as Worsham Brothers

v.Cecil Hewlett et al.

(No. 7667)

Supreme Court of Appeals of West Virginia.

Submitted February 6, 1934.

Decided February 20, 1934.

Appeal and Error

A writ of error or appeal is deemed to be docketed, within the meaning of section 17, article 5, chapter 58, Code 1931, requiring the deposit of money with the clerk of this court for printing the record within three months after the case is docketed, on the day on which the clerk receives in his office the petition, bearing a notation of allowance by the Court, or a judge thereof in vacation.

Error to Circuit Court, Wayne County.

Action by Earl S. Worsham, doing business as Worsham Brothers, against Cecil Hewlett and others. To review an adverse judgment, defendants bring error. On plaintiff's motion to dismiss the proceedings in error.

Motion sustained,

M. J. Ferguson and J. M. McCandless, for plaintiffs in error.

Lindsay, Young & Atkins and James Damron, for defendant in error.

Woods, President.-

The defendant in error seeks to have the writ of error and supersedeas awarded by this Court on June 6, 1933, dismissed on the ground that the required deposit for printing was not made within the statutory period.

On the date aforesaid the clerk prepared the process, gave the case a number and entered it upon the fee book, and notified, by mail, the attorney for petitioners of the action of the Court and that process would be forwarded upon receipt of the statutory fee for docketing, etc., of $10.00. The foregoing fee was received by the clerk on June 13, 1933, at which time process was mailed. On September 7, 1933, the motion to dismiss was filed with the clerk. On the following day the clerk received a letter, bearing date September 7, 1933, which inclosed a check for estimated cost of printing.

Section 17, article 5, chapter 58, Code 1931, provides that "should the appellant or plaintiff in error fail for three months after his case has been docketed in the court of appeals to deposit with the clerk of said court of appeals a sufficient sum to pay for the printing of the record, he shall be deemed to have abandoned his appeal or writ of error and the same shall be dismissed." The purpose of the foregoing statute, as pointed out in Huffman v. Gwinn, 104 W. Va. 328, 140 S. E. 50, 51, "is to prevent delay on the part of appellant or plaintiff in error in perfecting his appeal or writ." See also, Gaines v. Stovall, 114 W. Va. 282, 171 S. E. 646,-Perry v. Horn, 21 W. Va. 732.

The position is taken in opposition to the motion to dismiss that the three months' period did not begin to run until June 13, 1933, the date the clerk actually mailed the process. Counsel argues that the docketing of an appeal or writ of error is dependent upon the issuance of process, and the...