133 S.E. 390 | W. Va. | 1926
Plaintiffs, George P. Williams and Calvin C. Redden, partners doing business as Williams-Redden and Company, obtained this writ of error to a judgment of nil capiat entered in the Common Pleas Court of Cabell County, on appeal from a justice, in a suit against defendant to recover a service charge of $300.00 for securing her a loan of $7,500.00 from the Mortgage 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 judgment of the court of common pleas. An order is found in the record 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 "Filed September *710 8, 1925. G. R. Seamonds, Clerk, C. C. C. C." The clerk certifies that he is clerk of the circuit court and ex officio clerk of the common pleas court; 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, on its face the certificate of the clerk says that the order was made and rendered in the common pleas court at a 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 plausible that an application for a writ of error would be presented to the court which rendered the judgment, it appears from the face of the order that it is not final. It says: "This day this cause came 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 counsel. 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. Sec. 1, Chap. 135, Code.
Section 26, Chap. 90 of the Acts of 1917, relating to the procedure by which an appeal, writ of error or supersedeas may be obtained from the Court of Common Pleas of Cabell County to the Circuit Court of that County, provides: ". . . and the law and rules governing the supreme court of appeals of this state in the matter of appeals from the circuit courts, so far 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 such matters shall be heard and disposed of without requiring the record to be printed." This case is governed by Blumberg v. Snyder,
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.
