48 W. Va. 498 | W. Va. | 1900
I. L. Bender, executor, and Jennie S. Bristol-, executrix, of J. H. Bristor, brought a chancery suit in the circuit court of Berkeley County against Henry M. Herring and others, to subject land to the payment of a debt. The process was returnable to December rules, 1895, and was executed on all the defendants except Cox, and against him at December rules an order of publication was awarded, and the case was continued on the rule docket for want of bill. It was again continued at January
This is a ease of novelty. Conceding that there occurred a discontinuance of the chancery cause, the question occurred to me whether the motion to compel such release of the notice or memorandum of lis pendens in advance of a judicial ascertainment, by an order in the chancery case, of the existence of a discontinuance in it could bo sustained. We have not the aid of any brief for the defendants in error. From the brief on the other side, I suppose the judge of the circuit court was moved by the same question. I cannot see that Herring by the present-collateral proceeding, can compel such release in advance of and without some action in the chancery suit itself declaring the existence of a discontinuance working the end of the chancery suit and extinguishing it, by decree therein dismissing it out of the court. FIeré is a suit at one time certainly lawfully pending in the court. A lis pendens was properly recorded. The defendant claims that it is no longer a ponding suit; the other side claims that it is, and may be lawfully further prosecuted. Who shall decide this question ? The court, of course. But in what proceeding? 1 answer in the very case in which the discontinuance exists, and not in another separate and collateral case. If judgment is given upon the motion for the execution of a release, it would not end the chancery suit. If the plaintiffs in the chancery suit go on with it, could Herring plead in bar of it the judgment upon this motion granting the relief ? I doubt it; it would seem to be irregular. It seems to me that the defendant
We must not think that because the case is still at rules, or its last appearance was on the rule docket, and that it never reached the trial docket, that it is beyond the control of the court. When a summons isu'es a suit is in the court. Though it be on the rule docket, it is nevertheless in that court as a pending cause. A suit is as much in the court though at rules as if on the trial docket. There is a docket of cases at rules, and there is a docket of cases matured for trial; but all are in the court, and the court has lawful powers over all of them. We must not conclude that because the Code in chapter 125, section 60, says: “The court shall have control over all proceedings in the office during the preceding vacation. It may reinstate any cause discontinued during such vacation, set aside any of the proceedings or correct any mistake therein, and make such order concerning the same as may be just,” that the court is limited in all its action upon eases pending at rules to the correction or reversal of the clerk’s action during the preceding vacation; for such is not the object of that section. I think the object of the section was to limit the powers of the court in term over affirmative action of the clerk at rules to such action, affirmative, positive, action, as was taken during the preceding vacation, and not allow the court to go further back, as it could do but for that section. It was designed to prohibit the court from reinstating any case discontinued prior to the preceding vacation, or its power to set aside or correct any mistake made prior to such vacation. It is aimed at actual proceedings or actions of the.clerk, limiting the corrective action of the court thereon to the last vacation. Surely it was not designed to prevent the court, in a case like the present, where a party brings a suit and allows it to slumber in silence, the clerk entering no order of discontinuance, from giving the other party the right to a positive declaration of discontinuance and judgment dismissing the cause.
The defendant not having procured a- judgment judicially ascertaining such discontinuance and judicially ending the chan-
Affirmed.