163 S.E. 442 | W. Va. | 1932
Elmo Bini complains of the action of the circuit court of Brooke county in dismissing his appeals from adverse judgments entered by a justice of said county on the sixteenth day of April, 1931, in two separate actions — one by Mike Kasmas and the other by Clara Kasmas. Said judgments were for $280.00 and $125.00, respectively.
The defendant attempted to give an appeal bond in each of said cases on the twenty-fifth of April. On the twenty-sixth, the justice informed the defendant that the bonds were insufficient, but that he would receive a surety company bond. Thereupon the defendant on Monday, April twenty-seventh, filed a surety bond in each case, both being acknowledged before the justice, who in his jurat included the statement "approved sufficient." A transcript from his docket together with the $10.00 docket fee, in each case was, on the twenty-eighth of April, transmitted to the clerk of the circuit court. On July seventeenth of the same year the circuit court, upon motion, dismissed each of said appeals, with the memorandum "The justice's transcript shows that he did not grant an appeal. It simply states "Bond approved and sent to clerk of circuit court with transcript. The motion to dismiss may be sustained."
While it might appear that the bond was given after the ten days provided for by statute, it would seem that the tenth day being a Sunday, would be excluded from the calculation, under the statute (Code 1931,
Should the justice have noted on his docket the granting of the appeal? Fortunately this is not a matter of first impression in this state. In the case of Holmes v. Yoke,
Taking into consideration the quoted statute and our holding in Holmes v. Yoke, supra, we reverse the judgments of the circuit court dismissing said appeals, and reinstate the cases on the docket of said court, in order that a hearing may be had on the merits.
Judgments reversed; Cases reinstated.