Forest v. Stephens

Woods, Judge, announced the opinion of the Court: The appellant has assigned various errors, in the said decree, which are not necessary to be now considered, because, first, the decree complained of is a decree b}^ default, and the alleged errors, if errors they he, could have all been corrected upon motion, by the said circuit court according to the provisions of the fifth section of chapter one hundred and thirty-four of the Code of West Virginia; and, secondly, because the said sixth section of said chapter expressly provides, that no “appeal, writ of error or supersedeas shall he allowed, or entertained by an appellate court or judge, for any matter, for which a judgment or decree is liable to be reversed or amended on motion, by the court which rendered it, or the judge thereof, until such motion bo made and overruled in whole or in part.” The errors complained of being such, as might have been so corrected, and the appellant, having failed to make such motion in said circuit court, the said appeal and supersedeas [318] allowed to the said appellant cannot be maintained. This is no longer au open question in this State, as this Court has repeatedly passed upon it, as will appear from the following-cases: Baker, &c. v. Western Mining & Manufacturing Co., 6 W. Va. 196; Dickenson Ex’r v. Lewis, 7 W. Va. 673; Adamson v. Peerce, 20 W. Va. 59. We are therefore of opinion and accordingly adjudge, order and decree, that the said appeal and supersedeas be dismissed, as having been improvidently awarded, and that the appellant pay to the appellee, J. G. Foster, his costs by him about his defense in this behalf expended. The Other Judges Concurred. Appeal Dismissed.