45 W. Va. 473 | W. Va. | 1898
On the 30th day of April, 1895, E. B. Parsons commenced an action before W. P. Kerwood, a justice of Jackson County for the recovery of three hundred dollars, against Aultman, Miller & Co., a foreign corporation. An attachment was issued, and several persons were summoned as garnishees. On the 1st day of July, 1895, without service of process or appearance on the part of defendant, a judgment was rendered for three hundred dollars against defendant, and several judgments against garnishees, aggregating two hundred and ninety dollars and eight cents, and certain property attached was ordered sold. .On the 10th of December, 1895, the defendant appeared, and obtained a rehearing, which was fixed for 27th December, 1S95. On that day it was continued until the 25th January, 1896, at 10 o’clock a. m. On that day it was continued on motion of plaintiff, and at his costs, until the 29th of January, 1896, at the same hour. On that day it was continued until the 6th day of February, at the same hour by agreement of parties. On the last-mentioned day Justice Kerwood was ill, and remained away from his office ; and at 2 o’clock i>. m., another justice, J. D. Clinton, having been called in to try the case, a jury was impaneled and a tidal had, resulting in a verdict of three hundred dollars for plaintiff, on which said Justice Clinton entered judgment in Justice Kerwood’s docket. On the 13th da}' of February, 1896, Justice Kerwood appears to have been still ill; and on the 20th day of February, 1896, between the hours of 10 and 11 A. m., the defendant appeared, filed the affidavits of John ED. Riley and Justice Clinton, and having served notice on the plaintiff, and his attorney, William A. Parsons, being present, moved Justice Kerwood to rehear said action, to which motion plaintiff objected, and the justice, on con
The first question presented is as to whether the order • entered by Justice Kerwood on the 20th day of February,. 1896, refusing to grant a rehearing, is an appealable order, i It is undoubtedly a final judgment, and is therefore a subject of appeal as to all questions then determined by the justice. It is provided in section 70, chapter 50, Code, that “when the defendant does not appear and judgment is rendered against him in his absence, the'justice may set aside the judgment within fourteen days thereafter on motion of defendant and payment of costs.” The judgment of Justice Clinton was rendered on the 6th of February, 1896; hence the motion was in time.
The next question, is was the motion before the proper justice? Justice Kerwood issued the summons, he was the custodian of the papers, and the judgment was on his docket. The motion was made, not on the grounds of any defect' in the judgment itself or the conduct of the jury trial, but because the justice who rendered it was without authority of law to hear and determine the case, was a mere . voluntary intermeddler, and a judgment was therefore void, and did not oust the jurisdiction of Justice Kerwood to hear and determine the case. This was a proper qustion to present to Justice Kerwood. If a voluntary intermeddler, without authority of law, took possession of his office during his illness and absence, and entered judgments on his docket on suits pending before him, such judgments would not be binding, and he would have the right to disregard and annul the same. The record shows that by agreement the trial of this case was set for 10 o’clock A. m., the 6th day of February, 1896; that Justice Kerwood was ill; and that a jury trial was had in the absence of the defendant,-.at 2 o’clock p. m.; and the affi
On the motion to quash the writ and dismiss the petition, it was proper to hear ex p>arte affidavits tending to show that there was some arrangement between the attorneys that the case was not to betaken up until a certain railroad train arrived, and that such train did not arrive until about noon. Such matter, if at all admissible, should have been presented before the justice on motion to rehear the jxidgment; but it is probable that when the defendant’s
Reversed.