41 W. Va. 371 | W. Va. | 1895
On the 27th day of May, 1893, W. S. Powell & Co. instituted a suit before L\ E. Harrison, a justice of the peace of of Berkeley county, against J. Wm. & C. A. Miller to recover three hundred dollars damages for breach of two certain contracts, and on June 15th, judgment was rendered against the defendants for one hundred and forty five dollars and costs. Before the expiration often days thereafter, C. Miller, one of the defendants, appeared at the office of the said justice when he was engaged in the transaction of other business, and stated to said justice that he desired to give the bond necessary for an appeal to the Circuit Court of Berkeley county. The justice informed him that he would fill out the bond, and bring it to said Miller’s place of business for him to execute, in order to take the appeal, but failed so to do, and said justice states in an af
Said C. A. Miller afterwards presented a petition in vacation to the judge of the circuit court of said county, setting forth therein the above facts, supporting the same with the affidavit of said justice, and praying an appeal; and on the 28th day of June, 1893, upon consideration of said petition, the judge of said circuit court in vacation allowed said appeal, said defendants having delivered a proper bond, with security as required by law; and on the 2d day of October, 1893, the plain till and appellee, by his attorney, moved the court to dismiss said appeal, granted as aforesaid in vacation, because the same was improvidently allowed; and the court, being of opinion that said appeal was improvidontly allowed, no good cause being shown by the appellant for not having taken the appeal within ten days, dismissed said appeal at the defendant’s costs, and from this order dismissing said appeal this writ of error was obtained.
The only error relied on by the appellant is that “it was error to dismiss said appeal as improvidently allowed, because the circumstances were such ‘adventitious circumstances beyond the control of the defendants, as would entitle him to a new trial.”
Our Code (chapter 50, s. 164) provides that “an appeal shall not be allowed by the justice, unless within ten days after the judgment is rendered or revived, bond, with good security, to be approved by the justice, in the penalty of double the amount of the judgment, is tiled with him,” conditioned as therein prescribed; and section 174 of the same chapter provides that “appeals from the judgment of justices may be granted after the expiration of ten days, and within ninety days after the date of the judgment, by the circuit court in term time, or the judge thereof in vacation, when the party seeking the appeal ⅜ * * shall deliver to the court or judge a proper bond with sufficient security thereto, as hereinafter prescribed, and show by his own oath, or otherwise, good cause for his not having taken such appeal within the said ton days.”
This Court in the case of Ruffner v. Love, 24 W. Va. 181, held that the same test must be applied in determining whether good cause was shown in the petition for having-failed to take the appeal within ten days; and, applying this test to the case under consideration, wo can not say that the appellant, in his petition, presented such cause as would have entitled him to relief in a court of equity on application for a new trial.
The judgment complained of is therefore affirmed, with costs, etc.