57 W. Va. 576 | W. Va. | 1905
As will appear in Simmons v. Thomasson 50 W. Va. 656, Thomasson brought action before a justice of Curtis district, Eoane county, against Gr. B. and W. S. Simmons, which by consent was transferred to Spencer district for trial by the justice of Curtis district who issued the process, Kelly, that his successor, justice Petty, took up the case and entered judgment for the plaintiff in the absence of the defendants; that a prohibition issued against the judgment, and that judgment was prohibited as null and void by the decision of this Court. After the decision by this Court, supposably in conformity to its decision and direction, justice Petty gave notice to the defendants to appear before him, 30th Juno, 1902, to try the case, and on that date, the defendants not appearing, rendered judgment for plaintiff, and the defendants took ah appeal to the circuit court, and in that court, on a motion of defendants, the said notice of re-trial was quashed, and the action was dismissed, and the plaintiff has brought the case to this Court.
The claim for the defendants is, that the action was discontinued in the court of the justice, and being dead, there was no action to try or in which to give judgment, and that the judgment is void. What is a discontinuance, technically or properly speaking? At one time the pleadings or altercations, that is, what the litigants had to say against each other, so as to come to an issue, ivere by word of mouth. “During this oral altercation a contemporaneous official minute in writing was drawn up by one of the officers of the court, on a parchment roll, containing a transcript of all the different allegations of fact to the issue inclusive. And, in addition to this, it comprised a short notice of the nature of the action, the time of the appearance of the parties in court, and the acts of the court itself during the progress of the pleading. These chiefly consisted of what were called the ‘continuances’ of the proceedings — the nature of which was as follows: “There were certain purposes for which the law allowed the proceedings to be adjourned, or continued over from one term to another, or from one day to another in the same term; and when this happened, an entry of such adjournment to a given day and of its cause was made on the parchment roll; and by that entry the parties were also ap
True, that section says that if the justice does not appear, the action shall stand continued. Must that fact appear by the docket that day? Who is to make the entry? In a legal view is not there a failure of the justice to appear when the record is silent? Anyhow, there is the broad declaration that ‘ ‘no action shall be discontinued on account of the absence of the justice,” and the broad provision for continuance from week to week. The design is to save cases from discontinuance from inaction. If the statute does not apply, still I think there was no discontinuance. It is argued by the counsel for plaintiff that taking the appeal was an appearance, gave the circuit court jurisdiction, and cured precedent irregularity. There is no. question of jurisdiction in that court. But we cannot see that if the suit was dead, appeal could revive it. If not defunct, of course, the appeal
Therefore, we reverse the judgment, and remand the case to the circuit court for trial.
Reversed.