Williams v. IrvinWilliams v. Irvin
- Reporters:
- , ,
- Before:
- Lively
Plaintiffs, George P. Williams and Calvin C. Redden, partners doing business as Williams-Redden аnd Company, obtained this writ of error to a judgment of nil capiat еntered in the Common Pleas Court of Cabell County, on appeal from a justice, in a suit against defendant to recover a serviсe charge of $300.00 for securing her a loan of $7,500.00 from the Mortgagе Security Corporation of America.
Upon an examination of the record it is not clear that the circuit court has refused by a final order the application for writ of error to the judgmеnt of the court of common pleas. An order is found in the recоrd which describes the style of the case, and a notation following the style, of “Upon Petition for a writ of error,” on which is endorsed “Pilеd September *710 8, 1925. G. R. Seamonds, Clerk, Q. C. C. C. ” Tlie clerk certifies tRat Re is clеrk of the circuit court and ex officio clerk of the common pleas сourt; and while the four letters “C. C‘. C. C.” following his name would indicate that he endorsed that order as having been filed for entry in the circuit court, оn its face the certificate of the clerk says that the ordеr was made and rendered in the common pleas court at а regular term held on the 15th day of ‘October, 1925. While this order may be construed as an order of the circuit court (although purporting on its face to be a common pleas court order), as it is not рlausible that an application for a writ of error would be рresented to the court which rendered the judgment, it appeаrs from the face of the order that it is not final. It says.- “This day this cause сame on to be heard upon the petition of Williams-Redden and Company for a writ of error to be awarded it and was argued by сounsel. And the Court seeing no error apparent from the record filed with and made a part of said petition is of the opinion to, and does hereby refuse to grant the.writ of error as prayed for.” No writ of error lies to this court except from a final order or judgment. See. 1, Chap. 135, Code.
Section 26, Chap. 90 of the Acts of 1917, rеlating to the procedure by which an appeal, writ of errоr or supersedeas may be obtained from the Court of Common Pleas of Cabell County to the Circuit Court of that County, provides: “. . . and the lаw and rules governing the supreme court of appeals of this state in the matter of appeals from the circuit courts, so fаr as applicable, shall govern the proceedings on appeal, writs of error or supersedeas to the circuit court from said common pleas court, except that all suсh matters shall be heard and disposed of without requiring the record tо be printed.” This case is governed by Blumberg v. Snyder, 90 W. Va. 145, 148, wherein it was said: “It may be observеd that refusal of application to this court for appеal or error is not final, and the application may be renewed before limitation expires, unless the court deems the judgment, decree or order complained of plainly right and rejeсts it on that ground. Chap. 135, sec. 11, Code. This chapter, so far as *711 applicable, governs proceedings for writ of error from tbe сourt of common pleas to the circuit court of Kanawha County. See sec. 18, chap. 109, Acts 1915.” The Blumberg case was followed in Truslow v. Payne, 90 W. Va. 149.
There having been no final order, we have no jurisdiction to examine and pass upon the merits of the case, because the writ of error was improvidently awarded and it must be dismissed for that reason.
Writ of error dismissed.