68 W. Va. 687 | W. Va. | 1911
The defendant complains of a judgment against him; but we ñnd no error to his prejudice committed in the disposition of the case by the circuit court. Let us briefly review: .
1. The motion to dismiss the plaintiff’s appeal from the judgment of the justice was properly overruled. This appeal was granted by the circuit court, pursuant to Code 1906, chapter 50, section 174, within ninety c]ays from the date of the judgment. The petition, and _the affidavits accompanying the same, show good excuse for the plaintiffs’ not having taken an
2. The defendant, citing Parsons v. Riley, 33 W. Va. 464, insists that the judgment announced at the trial was one on the merits. The petition and affidavits for appeal do not so show. They show that the judgment then rendered was just that which we have stated it to be — a dismissal by the plaintiffs before any submission of the case for final determination on the merits. The justice in his affidavit expressly states that he did not hear the case on the merits. A plaintiff, in a case before a justice may dismiss his action, without prejudice to a new suit, before it is finally submitted for decision on the merits. Parsons v. Riley, supra, does not hold otherwise. Such plaintiff may take a non-suit, as one may suffer a non-suit in the circuit court before the jury retires to decide the issue.
3. The evidence introduced by the plaintiffs makes a prima fade case sufficient to support the finding of the court acting in lieu of a jury. Exceptions in this particular are not well taken. The defendant offered no evidence. Besides, depositions which the court improperly suppressed completely support the.finding. The action of the court in excluding these depositions is cross-assigned by the plaintiffs as error to their prejudice. These depositions should have been read. The mere want of a caption did not invalidate them, since the notice attached and the certificate of the notary fully supply all that a caption would have contained. 6 Enc. PI. and Pr., 537-539. The absence of an official seal to the notary’s certificate • is not fatal. Hanley, Admr. v. Railway Co., 59 W. Va. 420. The depositions were certified with sufficient regularity under our statute relative to depositions taken in another state. Code 1906, chapter 130', section 33; Bohn v. Zeigler, 44 W. Va. 402.
An order will be entered affirming the judgment.
Affirmed.