30 W. Va. 740 | W. Va. | 1888
The first inquiry is: Should the Circuit Court have dismissed the appeal awarded the defendant to the judgment of
Under our st-atutedaw the defendant could have taken an appeal from the judgment for $142.50, rendered against him by the justice in ten days after it was rendered, — that is, from October 1, 1887, — as of right, on his giving the required appeal-bond. See chapter 50, §§ 163,164, Code 1887, p. 462. After that he could not take an appeal as of right; but after that time and within ninety days from the time the judgment was rendered against him, upon showing to the Circuit Court or judge thereof in vacation by his own oath or otherwise good cause for his not having taken such appeal within the ten days, and giving the required bond such court or judge might grant him such appeal. If this appeal should be granted without good cause, it would on the motion of the
The decision in the former case was as follows, (see third point of syllabus.) “ W hen application, is made to such court or judge for such appeal, the facts relied on as showing good cause must be set out in such application; and they must show that he was prevented from taking such appeal within 10 days by fraud, accident or adventitious circumstances beyond his control, as would entitle him to a new trial.” In the latter case, it was held, that a mistake or want of knowledge of the law, even if caused by advice of counsel, was no such circumstance as would be good cause for granting such an appeal.
Of course it is entirely immaterial whether the appellant resided in or out of the State. Of course it is entirely immaterial whether he was plaintiff or defendant in this case. All suitors in the courts in this State must be presumed to know the law regulating the practice and proceedings in such cases ; and it applies as much to non-residents of the State, who sue or are sued in our courts, as it does to citizens of the State. This legal presumption is based on public policy, which would be as much disregarded, were the rule relaxed as to suitors in our courts, who were non-residents, as it would be, if relaxed in cases, where the suitors were residents of this State. No doubt the enforcement of the rule sometimes against non-residents as well as against residents will work a hardship; but perhaps not more often with nonresident suitors than with resident suitors. To relax the rule at all would be contrary to obvious public policy. If it were done, there would be no limit to the excuses of ignorance, and no one could have any assurance as to what our law really would be held to be in any case, though it were plain statute-law.
The rule we have laid down of what constitutes good cause for awarding an appeal from a justice’s judgment
We will now apply this law to the case before us. We have, in the statement.of the case, set out at length the affidavit and petition of the defendant, Cyrus M. Yocum, on which this appeal was granted by the judge of the Circuit Court of Tyler county in vacation, 21 days after the justice had rendered the judgment against him. The petition sworn to by the defendant, Cyrus M. Yocum, is a long one, but the ground on which he bases his application are these: First, that he was a non-resident of the State, living in Steuben-ville, Ohio, and did not know that the appeal must be taken, according to the statute law of West Virginia, within 10 days, and that after that it could not be taken of right; and that, owing to his ignorance of the law of West Virginia, the 10 days after the judgment had been rendered against him by the justice expired before he could ascertain that such judgment had been rendered against him.
We have already shown that this ignorance on his part of the law regulating appeals from judgments of justices can not possibly be regarded as good cause for not taking his appeal in 10 days after judgment was rendered against him by the justice. He had been served with the summons on September 6, 1884, in Tyler county, and he knew the case
The allowance of ten days in which to take an appeal as of right from a justice has been the plain-statute-law of this State from its foundation; and there is probably no statute-law so universally known as this. It must be known to every one who has ever been a justice in the State, and to almost every one who has brought a suit, or been sued, before a justice, however ignorant of the law generally, and, of course, to a vast number of other persons. The defendant, Yocum, lived in Steubenville, and the Ohio river is all that separated his residence from West Virginia. He was, as his petition shows, frequently in West Virginia, carrying-on his business of roofing houses with slate. The least possible amount of diligence would have enabled him, therefore, to ascertain how long after a justice’s judgment our law allowed a person against whom such judgment was rendered to take an appeal as of right. He was in Tyler county when the summons was served upon him. The constable who served him with the process could have given
' The second ground on which he asks this extension of time is that he was very busy in his usual business of slate-roofing, and much of his time from home ; and thus he did not hear that a judgment was rendered against him on October 1, 1886, the time the case was set for hearing, till more than ten days after this judgment was rendered. This is, if possible, further from a good cause for granting an appeal after the ten days had passed after the judgment was rendered by the justice than was his wilful ignorance of the law. In the first place, he might, without hearing a word, have assumed that, as he made no defence to the suit, there was almost a certainty that the plaintiffs had on October 1,1886, when he knew the case was to be tried, obtained a judgment from thejustice against him. In the next place, though his residence, Steubenville, as the court judicially knows, was some seventy five miles from Sistersville, in Tyler county, yet the two points were connected, both by the Ohio river and by a railroad; so that he could, by addressing a letter to thejus-tice, at any time within a day have learned what judgment had been rendered on October 1st. It is most probable this information could have been furnished by telegraph at any time within an hour or two.
His petition further says he was away from home during
This third cause is that on the 80th day of September, 1884, he mailed a letter to J. N. McKnight, whom he had employed in another case in the Circuit Court of Tyler as his counsel to see after this suit before the justice, and if judgment was rendered against him, to take an appeal, as he would not be able to be there himself; that this letter totally miscarried, and was never received by McKnight, and he
Now it does seem to me that it was gross negligence in the defendant below, Yocum, when he received no reply to his letter for so long a time, not to see to the matter, and ascertain whether an appeal had been taken to the judgment which he had every reason to believe the justice had rendered against him on October 1st. He is presumed to know that he had but ten days in which to take this appeal as of right. If he thought any more about this suit after writing this letter, as he knew, or is presumed to have known, that an appeal-bond, with security would have to be given before the appeal could be granted, he might have supposed that the counsel he had written to might not choose to incur the responsibility of either signing, or getting others to sign, such appeal-bond, which might subject the obligors to pay the whole of this justice’s judgment, $142.50, or even more if the judgment of the Circuit Court should be for a larger amount. The defendant does not profess to have made any
It was, it seems to me, the duty of the defendant, when he got no reply to his letter within two or three days after the 1st of October, to go down to Tyler county, which he could easily have done in a day’s time, and take the appeal he wished. He had no right, under these circumstances, to assume that it had been done for him by McKnight, his counsel. He had never been told it had been done; and he had, as we have seen, reason to believe it might not have been done. He seems to me to have been grossly negligent in making no effort to ascertain whether it had been done or not. He was willing to take the chances of his counsel having done it, and he must abide by the consequence, — the result of his inattention, really, and not of the miscarriage of his letter. Perhaps, if it had not miscarried, the appeal might have been taken, which is doubtful ; but this cannot be considered as the cause of the appeal’s not being taken, as he had ample time after he should have received a reply to this letter, if it had not miscarried, to take the appeal within the ten days. A suitor can not thus neglect utterly his case, and throw on counsel- the whole responsibility of a miscarriage of the suit, by simply showing that he had written asking him to attend to the case, but furnishing no aid in attending to it, and making not even an inquiry about it of the counsel to whom he may have written to ascertain whether it was being attended to by him. A party, who has been thus negligent, will not be relieved from a judgment or decree against him in favor of defendant.
“ They had struggléd hard to sustain the plaintiff’s claim to be heard in opposition to the decree against him; but the plaintiff can not be entitled to the relief after his gross negligence. * * * The case is analogous to injunctions to judgments at law, alleged to have been obtained by accident or surprise. The practice of the court, when most loose, wou'ld not have justified an interference in a case like this. * * * It was his duty to inquire as to the progress of the suit.”
So, here, under the circumstances of this case, it was the duty of the defendant to have inquired whether his appeal had been taken before the time had expired in which he had a right to appeal. Had he done so, he could have got his appeal; and he had, as we have seen, abundant time within which to make this inquiry, had he not. preferred attending to his ordinary occupations. _ ■
So, in this case, the failure of the defendant to obtain an appeal within the ten days after the judgment was rendered against him by the justice was not the consequence, properly, of the miscarriage of his letter, but of his own gross negligence in making no inquiry about whether the appeal had been granted or not. Had he paid any attention to his case, the miscarriage of his letter would have resulted in no injury; and he had ample time after the miscarriage to have obtained his appeal.
The decisions in the two West Virginia cases concur in holding that this Court may review the refusal of a Circuit
In the first place, the statute was adopted to enable a person who, by fraud, accident, mistake, surprise, or some other adventitious circumstances beyond his control, had failed to apply for an appeal (the same, in effect, as a new trial) within, the time allowed him by law, — that is, within ten days after the justice’s judgment had been rendered, — to still obtain an appeal, i. e. a new trial, within ninety days after the justice’s judgment was rendered. Courts of equity had always, in Virginia and West Virginia, afforded redress to a party who, by fraud, accident, mistake, surprise, or some adventitious circumstances beyond his control, failed to apply to a Circuit Court for a new trial within the time allowed by law; that is, before or on the last day of the term at which such judgment was rendered. This would lead us to construe the statute so as to make the remedy given, in such a case, by the statute, similar to the remedy given by courts of equity in similar cases of judgment by the Circuit Court. And accordingly we have found that, by the two cases we have decided on this subject, (Ruffner v. Love, 24 W. Va. 181, and Machine Co. v. Floding, 27 W. Va. 540,) the “good cause ” for granting a new trial by the Circuit Court, or judge thereof in vacation, is the same good cause which would justify the Circuit Court, or a judge thereof in vacation, bo grant an injunction to a judgment of a court of record until a new trial was had of the case, when the bill alleges good cause for not asking a new trial of the common-layr court in
The statute (chapter 50, § 174, pp. 464, 465, Code W. Va. 1887) is: “Appeals from judgments of justices may be granted after the expiration of ten days, and within ninety days, after date of judgment by the Circuit Court in term-time, or the judge thereof in vacation, when the party seeking the appeal shall deliver the court or judge the proper bond, with security thereto, as herein furnished, and show by his own oath or otherwise good cause for not having taken such appeal within said ten days.” The bond referred to in this section and provided for in the next section, page 465, if he wish to stay the proceedings on the justice’s judgment, is to perform and satisfy such judgment as may be rendered against him by the Circuit Court. This bond is but little different from the bond required when an injunction is awarded to a judgment of a Circuit Court on a bill asking such injunction to such a judgment till the case had been retried, because the party, for good cause, had failed to ask the court of law for a new trial in proper time. See Code 1887, ch. 133, § 10, p. 821. And it is further provided by this 175th section of chapter 50, p. 465, that the court or judge shall make and certify to the justice an order to cease all further’ proceedings in the case etc-, and transmit, without delay, to the clerk of said Circuit Court a complete transcript from his docket of the proceedings in the action, together with the original; and then the cause is to proceed in the Circuit Court as in other appeals from the judgments of justices.
The question is : How is the party under this 174th section, above quoted, “ to show, by his oath or otherwise, good cause for his not having taken such appeal within said ten
Nothing is said in the statute as to the disposition to be made of the appeal-bond thus taken before the judge in vacation. It would seem clear that it should be transmitted to the clerk of the Circuit Court along with the written application, and written proofs, and the written order of the judge granting such appeal, and they should all be filed with the papers of the case, when transmitted to the clerk by a justice. It seems to me it would be the duty of the clerk to enter this order on his record book on the law-side of the court; and though this 175th section of chapter 50, p. 465, Code, says that the court or judge shall make and certify to the justice this order granting the appeal, yet when this appeal is granted by a judge in vacation, as well as when granted by the court, the certifying of this order should in both cases be by the clerk after recording the same. This was the mode in which all these proceedings were had in the case before us, and they seem to me to be in accord with the true meaning and spirit of our statute-law. When so done, they pursue
According to these views, when such motion is made, it would have to be decided by the written application and proofs which were before the judge or court when the appeal was granted, and which have been filed with the papers of the case. No new proof as to whether or not good cause could be shown why the party appealing had not taken his appeal within ten days could be introduced. It seems to me that proceedings so awarded would be carrying out the true meaning of our statute-law. It would depart from the proceedings in such injunction-suit for a new trial, in this: that no proof could be subsequently introduced to fortify or assail the granting of such appeal, though this may be done when such injunction to a judgment is awarded till a new trial may be had. This, though, is the necessary consequence of awarding an appeal directly, which operates as a new trial, and the awarding of an injunction till a new trial is had, which does not finally determine that a new trial is to be had; this being not finally determined till subsequently, .on proofs afterwards taken.
Neither is there anything in our statute-law authorizing proofs that the party obtaining the appeal had not good cause for failure to take his appeal within the said ten days. It seems to me, too, that it would be a great hardship on the Circuit Courts, and on the suitors in the court, if there should not only be a trial de novo before a justice of trifling cases, very little exceeding $15.00 in amount; but that the time of the Circuit Court should be consumed in also trying de novo, on evidence, whether the party who had got his appeal really had good cause for not having taken it within the ten days. The rights of parties in such litigation are sufficiently protected when the person getting such appeal by ex parte proofs shows that he had good cause for not taking his appeal in the ten days, and when the judgment of the Circuit Court or judge, on the question whether such good- cause has been shown on these ex parte proofs in writing, can be reviewed by an appellate court.' "
The judgment of the Circuit Court rendered on the 9th of August, 1887, reversing and annulling the judgment rendered by Robert Henderson, a justice of Tyler county, on October 1st, 1884, in favor of the plaintiffs against the defendant for $142.50, and costs of suit, must be reversed and annulled; and the plaintiffs in error must recover of the defendant in error their costs in this Court expended; and this Court, proceeding to render such judgment as the court below should have rendered, the appeal granted in this case must be dismissed as improvidently granted; and the plaintiffs, G. E. Hubbard and J. O. K. Hubbard, partners under the firm name of J. O. K. Hubbard, must recover of the defendant, Cyrus M. Yocum, their costs expended in this case in the Circuit Court of Tyler county.
REVERSED.