| W. Va. | Jun 30, 1883
announced the opinion of the Court:
If a plaintiff brings a suit in a common law court of original jurisdiction and fails to prosecute it, and he is non-suited or his case is dismissed, such a dismissal does not hinder him from again bringing a like suit for the same cause of action. The law gives to every one a remedy when his legal rights have been invaded, and his failure to prosecute his suit to enforce such right as he ought to do, the common law courts hold ought not to deprive him of his rights or debar him of a right to institute another suit, as the merits of his case have never been passed upon by any court. But in case his rights have been passed upon by a court of competent jurisdiction, and he deems himself injured by the decision of the court, and obtains a writ of error with or without supersedeas to have the judgment of this Court of original jurisdiction reviewed, and fails properly to prosecute his writ of error, and after due notice and consideration the appellate court dismisses his appeal or requires him to give a new bond with approved security, such as the defendant in error has a right to require, the first bond being worthless because of the insolvency of the obligors on it, and he fails to give such new bond and his writ of error is dismissed, it
Thus by our statute law, see chapter 171 of Acts of 1872-3, “If the appellant or plaintiff in error fails within six months, after his case has been docketed in the Court of Appeals, to deposit with the clerk a sufficient amount to pay for the printing of the record, he is decreed to have abandoned his appeal, and the same shall be dismissed.” Yet though thus dismissed for this cause, a second writ of error would be awarded the plaintiff in error as a matter of course, because our said statute expressly provides, when a case has been thus dismissed for failure, to print or to deposit the money within six months with the clerk to have the record printed, that “the appeal may be renewed at any time within five years from the date of the judgment, order or decree appealed from.” But when no provision of statute-law can be found thus expressly or by fair implication authorizing the granting of a second writ of error, after one has been dismissed by the appellate court, the plaintiff can not as of right have awarded to him a second writ of error. That our law. did not intend to permit after the dismissal of a writ of error a second writ of error to be awarded as a matter of course, except in particular classes of cases, such as we have pointed
This conclusion, that the plaintiff in error can not except by statutory provisions be awarded as of right a second writ of error, where his first writ of error has been dismissed for want of prosecution or because of his failure to give a new bond with sufficient security when required so to do after a full hearing of the matter by the appellate court, is sustained by the decided weight of authority. In New York it seems to have been the practice of the appellate court to grant a second writ of error when the first had not been dismissed on its merits, but because of its want of prosecution by the plaintiff in error. See Langley v. Warner, 1 Com. 606; Kelsey v. Campbell, 38 Barb. 238" court="N.Y. Sup. Ct." date_filed="1862-09-15" href="https://app.midpage.ai/document/kelsey-v-campbell-5456592?utm_source=webapp" opinion_id="5456592">38 Barb. 238. But from what is said by Judge Duer in Watson v. Husson, 1 Duer 252, I infer, that this practice was adopted because the bonds given, when a writ of error was awarded in that State, only provided, that the obligors should be responsible in case the judgment ap
The judge in this case says : “The bond which the revised statutes required to be given when a writ of error was brought, which was intended to operate as a stay of execution, not only bound the parties to satisfy the judgment in case it should be affirmed, but also in case the plaintiff in error should fail to prosecute the writ or the same should be quashed or discontinued, (2 R. S. 59 § 28), and why these additional and very significant provisions have been omitted in the Code we have been unable to discover, and are at loss to imagine. "We cannot believe, that they were rejected by the framers of the Code as superfluous, in the belief that they were all virtually comprehended in the affirmance of the judgment. If they really intended, that the undertaking upon an appeal should be construed as largely as the bond upon a writ of error, it is to be regretted that they have not expressed themselves in terms that could enable us to carry their intention into effect. We can not depart so far from all sound and safe rules of interpretation as to adopt a construction, which is plainly inconsistent with the settled and sole meaning of the words they have chosen to employ. To affirm a judgment is by the judicial sentence of an appellate court to declare its validity, and it is a legal solecism that a judgment has been affirmed, when the question of its validity is exactly that which the appellate court refused to consider. The court of appeals has said, that the appeal should be dismissed, but as it has not said that the judgment is either valid or erroneous, we have no more right “to say it has-been affirmed than that it has been reversed.” This opinion was delivered in a suit upon an appeal bond.
It is obvious, that an exactly opposite conclusion would have been reached had the suit been upon the bond given in the case now before us on the granting ot the first writ of error and supersedeas; for it not only provided, that the obligors should be responsible if. the judgment below was affirmed, as the New York bond did, but also if the “writ of error and supersedeas were dismissed.” This decision I regard then as not contrary to the conclusion, which I have reached, but the reasoning of it has not been regarded as
The Kentucky case referred to, reported in 3 J. J. Marshall 375 was, like the New York case above quoted, a writ of error from a judgment in a suit on an appeal bond, in which the obligors “bound themselves to pay, &c., in case the judgment shall be affirmed in said court of appeals.” The appeal had been dismissed by an order of the court for failure to prosecute it by the appellant, with damages and costs, and thereupon suit was brought on this appeal bond. The court of appeals decided, that such suit should be sustained, and that the conditions of the bond had been broken; such conditions being equivalent to saying, “unless the judgment is reversed by the appellate court.”
In the California case, from which we quoted above, 15 Cal. 324" court="Cal." date_filed="1860-07-01" href="https://app.midpage.ai/document/karth-v-light-5434377?utm_source=webapp" opinion_id="5434377">15 Cal. 324, the court held: “The cases in which dismissal of an appeal will not operate as a bar to a second appeal, and hence not as an affirmance of the judgment below, are those where the dismissal has been made on some technical defect in the notice of the appeal, or the undertaking or the like. The bar operates when the dismissal is for the want of prosecution, and the order is not vacated during the term, or the dismissal is on the merits.” This decision is in accord with
But in opposition to these decisions it was held in Marshall v. The Milwakee & St. Paul Railroad Co. 20 Wis. 676, that an appellant whose first appeal had been dismissed for want of prosecution, may take a second appeal, as of right, within the time allowed by the statute for appealing’. The court however took this position hesitatingly. The court say: “The first appeal was dismissed under the rules of this court, because the appellant had not caused a proper return to be filed, and also had neglected to serve Ms printed cases. It will be borne in mind, that the record was never in this court, but remained in the court below till the second appeal was taken. An appeal now in a common law case, performs the office of a writ of error under the old practice. The former statutes, R. S. 1849 ch. 104 § 11, as well as the present one, ch. 139 § 36, permitted a second writ of error on the dismissal of the first; and in analogy to practice we are inclined to hold a party may take a second appeal, when the former has been dismissed under the rules.” The New York cases are referred to as countenancing such practice, and the case of Martinez v. Gallardo, 5 Cal. 155" court="Cal." date_filed="1855-07-01" href="https://app.midpage.ai/document/martinez-v-gallardo-5432867?utm_source=webapp" opinion_id="5432867">5 Cal. 155 is also referred to as having decided, that “ where an appeal is dismissed for want of a proper bond, and no final j udgment has been rendered, a second appeal may be taken. Although these authorities are not in point, yet ” say the court, “ they clearly sustain the view, that the first appeal taken in this ease did not operate to bar a second appeal.”
Though there be seme conflict among these decisions, the decided weight of authority sustains the view, which I have expressed, that under our law, if a case is dismissed for want of prosecution, or because a party fails to give a new bond with security, after the same has upon mature consideration been dismissed by this Court, such party cannot as of right have a second writ of error. This too is the conclusion, which we would draw, from the decisions in the court of appeals of Virginia, which are binding upon us as authority. It has been in these cases held, that where a suit has been dismissed by the appellate court for want of prosecution, it cannot as of right be redocketed at a subsequent term; but
In Sites et al. v. Weiland, 5 Leigh 80, an appeal was taken under the provisions of the R. Code of 1819, whereby the appellant’s appeal-bond was with condition to satisfy and pay the amount, which had been recovered in case the same be affirmed. See ch. 66, § 50, p. 206, and ch. 64, § 11, p. 192, and § 19 of same chapter. Sec. 13 of ch. 64, p. 193, provided: “In case the transcript of a record in any appeal, writ of error or supersedeas shall not be filed with the clerk of said court within six calendar months after the same shall be granted, such appeal, writ of error or supersedeas shall be dismissed unless good cause be shown to the contrary.” And section 20 of said chapter 64 provided: “Alter the dismissal of an appeal, writ of error or supersedeas in the court of appeals no appeal, writ of - error dr supersedeas shall be allowed.” After this appeal and supersedeas was awarded, the Legislature in February, 1825, passed an act authorizing appellate courts to allow writs of error and appeals upon bond and security being given for the costs of the writ of error or appeal only; provided such writ of error or appeal should not operate as a supersedeas to the judgment or decree. See Supp. of R. Code, ch. 98, p. 127. In June, 1827, after a rule duly entered and served on the appellants, the court made an order, that unless other and sufficient security should be given before July 1, 1827, the appeal should stand dismissed, as an act of the day, on which the order was made. This bond was not given, and at a subsequent term, after this dismissal for this cause, the appellants presented a petition asking, that the appeal be reinstated or that a new appeal should be allowed upon the appellant giving bond and security for costs only, so that the appeal should not operate as a supersedeas to the decree. But the court held, that the appellants are not entitled to have the appeal reinstated, or to have a new appeal allowed on giving security for cost only, and taking the appeals without a supersedeas to
In the Code of W. Va. of 1869, see ch. 135, § 3, the condition of the undertaking was again made similar to that in the bond. Great charges were made in the manner of taking appeals, by the Legislature of this State in 1863 and subsequent legislation, which changes were continued in the Code of West Virginia, chapter 135, which it is not deemed necessary to particularly point out, they being familiar to the profession. Under these changes instead of appeals being taken to the Supreme Court of Appeals only for errors assigned by the appellant in a petition, when the court on such petition deem it proper to award an appeal, were taken of right on the appellants filing an undertaking in the clerk’s office of the court below. The condition of this undertaking is set out in section 3, chapter 135 of Code of West Virginia, page 639. It provided: “.That if the judgment, decree or order appealed from is affirmed, the appellant shall abide by and perform the judgment, decree or order of affirmance, and pay to the opposite party or to any person injured all such costs and damages as they or either of them may incur or sustain by reason of said appeal. If such party do not desire a stay of execution, such undertaking shall be to the effect only, that he will pay the costs of the appeal in case the judgment, decree or order be affirmed.” This undertaking differed from the bond, which under the Code of Virginia was to be given upon an appeal,
But from the decisions in Kentucky and California, to which I have referred, the inference would he, that the omission in pur Code to say in express words, that the appellant should be responsible if his appeal was dismissed would not really modify this undertaking, as such dismissal would be regarded as substantially within the meaning of the law an affirmance. But we need not examine the provision of the Code of West Virginia of 1869 with a view of definitely determining this question, as by the Acts of 1872-73 chapter 17 p. 60, the mode of taking appeals, which had always prevailed in Virginia was restored, and the condition of the bond required, (see section 14,) was restored to just what it had been under the Code of Virginia of 1849, and it provided as it still does for the responsibility of the parties to the bond, not only if the judgment or decree was affirmed, but also if the appeal or writ of error was dismissed. There is it is true no express provision now, that if the appeal or writ of error is dismissed it shall not be reinstated. But from what we have said it follows, that such reversal of an appeal or writ of error after it has been dismissed is forbidden in effect by this condition of the bond, that the parties to it shall be responsible if the appeal or writ of error is dismissed. For they could not be so responsible if such second appeal or writ of error was allowed as of course, for if upon it the judgment or' decree below was reversed, they could not surely be held liable for the amount of his judgment or decree. This second appeal or writ of error is by the terms of our present law to be granted as of course, if the dismissiou be for one specified cause, that is a failure to print the record or to deposit with the clerk of this Court a fund sufficient to print the record within six months after the docketing of the case in this Court. Except in this respect there has been no substantial change in our law since 1819 except between the years 1863 and 1873, and the policy introduced during these years, if
Writ of Error Dismissed.