49 W. Va. 1 | W. Va. | 1901
Henry McCormick instituted an action of unlawful detainer against Isaiah Short before a justice of McDowell County to recover possession of a tract of two thousand nine hundred and seven acres of land, which resulted in a judgment for the plaintiff, the defendant not appearing. Upon this judgment the justice issued a writ of possession, under which Short was turned out of possession and McCormick placed in possession. After this Short obtained from the judge of the circuit court an appeal. McCormick’ moved to dismiss this appeal, but the court refused to dismiss it. Later, McCormick announced his purpose not to prosecute his action- further, and asked the circuit court to dismiss it. Short met this motion by himself moving the court to award a rule against McCormick to show causé why he, Short, should not be restored to the possession of the land before McCormick -should be allowed to dismiss his action, and the court ordered that the cause be retained on the docket until such time as McCormick should put Short in the same condition with reference to the possession of the land as he was in at the
McCormick says that the circuit court erred in its refusal to dismiss the appeal. The first point made by counsel for this position is based on the claim that no good cause was shown for the appeal, or if there was good cause, it was not shown in the proper way, according to the requirement of Hubbard v. Yocum, 30 W. Va. 740. Short filed before the judge, after ton days and within ninety days after the judgment, his petition verified by the affidavit of Philip Lambert, attorney for Short, which petition states that Short and Lambert, as his attorney, appeared at the justice’s office on the return day of the summons in the action of unlawful detainer before the justice, and waited long after the one hour allowed by law for the appearance of the parties, and that some time after the expiration of the hour Lambert approached J. B. Auville, the agent of McCormick, and engaged in conversation with him as to what could be done in the absence of both the justice and the papers in the case, and that Auville and Lambert agreed that the cause should not stand continued for one week, but that it should stand dismissed, and that if Auville, as agent for McCormick, should do anything
But it seems to be claimed that even if the excuse for not taking the appeal within ten days is good, that excuse was not shown in the proper way under Hubbard v. Yocum, supra, holding that the applicant for an appeal “must ñle his application in writing and the proof with it, which proofs must all be in writing, including his own or the affidavits of others.” In that case this rule was laid down by Judge Geeeit for guidance as a rule of procedure. He proposed the question whether, under the statute for granting appeals after ten days, the proofs to sustain the application must be written, or might be oral, and he very properly decided that as the application was ex parte, in the absence of the other side, the proofs must be written, so that the other side could obtain the dismissal of the appeal if such proof was inadequate. Judge GREEN did not mean to say that if the petition for an appeal stated sufficient facts to warrant an ap
It is further suggested that a defect in Short’s application for an appeal exists in a want of diligence on the part of Short and his attorney, Lambert, in not being watchful to go before the justice and see that the agreement between Auville and Lambert for the dismissal of the case before the justice was carrid out, instead of trusting to Auville to dismiss or not prosecute the action. Short and his counsel had right to rely upon the agreement that the suit was to be abandoned. That agreement dispensed with any further diligence on the part of Short or his counsel. They had a right to go to sleep upon the faith of that agreement; McCormick is estopped by that agreement from pleading any such want of diligence on the part of Short or his counsel.
The next assignment of error made by McCormick is the action of the court in denying permission of the plaintiff to dismiss his case after appeal granted. Eeally, there was no denial, absolute and final, of such dismissal, but the court only put McCormick upon terms of restoring possession. The court only retained the case until there .should be restitution of possession done by McCormick, or effected by a writ of possession. In other words, the question before this Court is, not whether the court erred in refusing a dismissal, but whether it erred in awarding a -writ of possession to give back to Short the possession of which he was deprived by the writ of possession issued by the justice. Nobody can question the right of a plaintiff to dismiss his suit, as a general rule; but that is not the exact question here. The true question is, whether McCormick, after he had obtained judgment before the justice, and under it ousted
Affirmed.