198 S.E. 134 | W. Va. | 1938
This writ of error involves two orders of the circuit court of Ritchie County, the first dismissing out of court the instant case, which had originated before a justice of the peace who rendered judgment in favor of Wilfong and against Jackson for $300.00, and the second overruling a motion to set aside the dismissal.
Within the statutory period of ten days (Code, 50-15-2), after judgment had been rendered against him by the justice, Jackson tendered to that official an appeal bond which the latter approved and accepted; also, Jackson paid to the justice such costs as were taxed by him. Then, within the twenty-day period allowed by statute (Code, 50-15-5), the magistrate transmitted to the clerk the papers in the case. The clerk filed the papers in his office December 8, 1936. Thereafter, Jackson's attention being called to the fact that he had not deposited for clerk's costs the sum of $5.00 as required by Chapter 35 of the Acts of the Legislature 1931 (Code,
The ground of the court's dismissal is that there had been failure of compliance with the 1931 Act respecting the deposit of $5.00 for clerk's costs, the court being of opinion that the deposit should have been made with the justice and transmitted by him to the clerk along with the transcript.
The action of the court was based on the decision in the case of Van Faussen v. Loan Co.,
To the extent that the Van Faussen case holds that the deposit of a five-dollar clerk fee with the justice, to be transmitted by him to the clerk, is a condition precedent to an appeal, that case is disapproved and overruled.
This relaxation of the rule of the Van Faussen case obviates the necessity of adhering to the seriously challenged holding, in effect, that the making of the deposit with the justice is a jurisdictional matter.
The awkwardness of the situation which has arisen and which we are in this decision trying to clarify, came about because of the uncertainty of phraseology in the 1931 legislative act.
For reasons above set forth, we reverse the circuit court's orders of February 10 and June 25, 1937, and remand the case for further proceedings.
Reversed and remanded. *332