Womeldorff & Thomas Co. v. Moore , 108 W. Va. 721 ( 1930 )

In the absence of the defendant, the plaintiff obtained a judgment against her, at the January Term 1928 of the circuit court of Mason County. Later, at the same term, the defendant moved the court to set aside the judgment, and this order was entered: "This day came the defendant, Mai L. Moore and moved the court to set aside the judgment entered against her at a former day of the present term of the court, which motion the court doth take time to consider, and the further hearing upon said motion is continued until the next term of court."

At the next term (the May Term) the court refused to hear the motion, entering the following order: "This day came the defendant, Mai L. Moore, and moved action on her motion to set aside a judgment entered against her at the January Term of the Circuit Court of Mason County, West Virginia, which motion was originally made at the January term, and which motion the court took time to consider, and it appearing to the court that the January Term of said court passed without said motion having been acted upon, the court is of opinion to and doth hereby refuse to consider the motion of the said Mai L. Moore as renewed at this term of court."

It is the law generally that a motion to vacate a judgment made at the term when it is rendered, suspends the judgment until the motion is disposed of. If the hearing on the motion is continued to a subsequent term, the jurisdiction of the court over the proceedings is likewise continued. 15 Standard Ency. Pro. 190; 34 C. J., p. 212, etc. This principle was conceded in Green v. R. R. Co., 11 W. Va. 685, was followed inBank v. Johnston, 41 W. Va. 550, and was definitely pronounced in Cole v. State, 73 W. Va. 410. (See authorities cited on page 413, except the citation should be to 15 Ency. of Pl. Pr., p. 208.)

The hearing in this case was expressly continued to the May Term. That hearing was then denied and the defendant precluded from showing cause (if she could) in support of her motion. She is entitled to an opportunity to show cause and to have her motion disposed of. The order entered at the May Term will accordingly be set aside and the case remanded for further proceedings on the motion.

Order set aside; case remanded.