55 W. Va. 560 | W. Va. | 1904
J. M. McCoaeh & Company brought their action before a justice of Cabell county against the Cincinnati, Portsmouth, Big Sandy and Pomcro]'- Packet Company claiming judgment for money due on contract for $25. The case was tried on the 2Gth day of March, 1902. The justice rendered judgment for the plaintiffs for the sum of $14.38. On the 5th day of April, 1902, the defendant Packet Company, filed its petition in the circuit court of Cabell county praying for a rule against Samuel Bellville, the justice who rendered the judgment and the plaintiffs to show cause why a writ of prohibition should not be awarded prohibiting said justice from proceeding further in said action and from issuing execution or taking any further steps for the collection of said judgment. The grounds for such prohibition as set out in the petition are that on the day fixed in the summons for the trial of said cause and the defendant having appeared on the 21st of January, 1902, the cause was by agreement continued from time to time until the 26th day of March, when the defendant appeared and made defense to said action and after hearing all the evidence adduced upon the trial the said justice, on the said 26th day of-March, 1902, rendered judgment therein against the defendant for said sum of $11.38, with interest and costs; that although said judgment was so rendered the justice did not enter up the same within twenty-four hours, (Sunday excepted) after the judgment was rendered; that he did not enter up said judgment on the 27th, 28th nor 29th of March, but that he did, afterwards, more than severnijr-two hours after the time said judgment was rendered wrongfully and illegally enter up the judgment on his docket; that after the same was entered up, notice was given to plaintiff that on the 5th day of April, 1902,
It is contended by plaintiff in error that this case is controlled by the case of McClain v. Davis, 37 W. Va. 330. That was a case which had been to this Court before. A. J. Lowther in 1886 had brought suit against Davis and on the 8th day of April, 1886, had the verdict of a jury in the case, tried before two justices, in his favor for $184.00 and costs, no entry was made of any judgment on said verdict, afterwards a justice issued an execution; notice was given to the plaintiff to quash the execution; the justice overruled the motion to quash and refused an appeal from his judgment; an appeal was granted, however, by the circuit court and on motion of plaintiff the appeal was dismissed as improviclently awarded and Davis 1 «’ought it to this Court on writ of error and the Court held that the circuit court erred in dismissing the appeal and the justice erred in overruling the motion of the defendant, Davis, to quash the execution, for the reason that there was no judgment on which it could have been legally issued, and the case was remanded to the circuit court for trial on the appeal. Lowther v. Davis, 33 W. Va. 132; (10 S. E. 20). On the 20th of March, 1888, the two justices who tried the case entered judgment upon the said verdict, as of the 8th day of April, 1886. Plaintiff Lowther, died and his administrator made a motion before the justice to revive the judgment in his name, which motion was opposed by the defendant and the justice refused to revive, and on appeal to the circuit court his action was affirmed. The administrator brought it to this Court on writ of error and the judgment of the circuit court was here
The announcement of the conclusion arrived at by the jus
The judgment of tbe circuit court is right and must be affirmed.
Affirmed.