63 W. Va. 304 | W. Va. | 1908
J. E. Pickenpaugh and John L. Rohmer, administrators of Thomas Pickenpaugh, deceased, brought their action on contract before a justice of Randolph county on the 16th of December, 1902, against L. H. Keenan. The case was called for trial on January 14, 1903, when judgment was rendered by-the justice in favor of the plaintiff for $113.25 with interest thereon from that date until paid and costs of suit. The defendant appealed from said judgment to the circuit court of said county.
On the 4th day of February, 1904, the following order and judgment was entered in the case in the circuit court: “This day came the plaintiffs by their attorneys Cobb and Maxwell and the defendant being solemnly called came not and upon motion of the plaintiffs by their said attornej^s the judgment of the Justice E. E. Taylor is hereby confirmed. It is therefore considered by the Court that the plaintiff do recover of and from the said L. H. Keenan and Lizzie Keenan, the latter of whom signed the appeal bond in this cause as the surety therein, the sum of $117.25 the debt, interest and costs therein up to the time the appeal herein was taken,
The judgment complained of is rendered by the circuit court upon default of the defendant in failing to appear when called and without any trial of the case, and simply upon the confirmation of the judgment of the justice who had tried the case. When the appeal, taken from the judgment of the justice, was entertained in the circuit court the judgment of the justice was vacated and rendered ineffectual and the case could only be tried de novo upon its merits in the circuit court and judgment rendered upon the evidence adduced. It does not appear from the record that the circuit court had any evidence before it, nor does it appear from the judgment that any trial was had. In Evans v. Taylor, 28 W. Va. 184, it was held: “An appeal from the judgment of a justice or other inferior tribunal, which has the effect in law of transferring the controversia to the Appellate Court for trial de novo , operates in legal construction to vacate such judgment and renders it ineffectual as the foundation of an action.” See also DeArmit v. Town of Whitmer, decided at this term
When an appealed case from the judgment of a justice is •called upon the docket of a circuit court it stands precisely in the condition as it originally stood in the justice’s court. The plaintiff to be entitled to judgment must prove his case. The court being in error in rendering the judgment and in refusing to set aside the judgment and grant a new trial, the judgment of the circuit court is reversed and the cause is remanded for a new trial to be had therein.
Reversed. Remanded.