Hunt v. Mounts

Miller, Judge: Upon the trial of this action in ejectment, defendants interposed a demurrer to plaintiff’s evidence. On the conditional verdict of the jury, the court entered the following order: “And the matters of law arising upon the de *144 f endants ’ demurrer to the evidence in this case being argued by counsel and considered by the court, the court is of opinion that the law thereon is for the defendants. It is therefore considered that the law of the case is with the defendants. It is therefore ordered and adjudged that the defendants recover of and from the plaintiffs their costs in this behalf expended.” Defendants in error have filed in this court their motion to dismiss the writ of error as having been improvidently awarded. The record does not show that any final judgment was rendered in the ease. The judgment is for costs only. Upon finding that the law was for defendants, the court should have entered a judgment of nil capiat. On the authority of Kirk v. Camden Interstate Railway Company, 66 W. Va. 486, and Bower v. Virginian Railway Company, 68 W. Va. 629, and the-numerous eases cited therein, the writ of error awarded in this case must be dismissed, and the case remanded for further proceedings. Dismissed, as improvidently awarded.