Street v. Parsons , 68 W. Va. 517 ( 1911 )

MilleR, Judge:.

We are asked, upon a rule to show cause against it, to award a writ prohibiting Hon. W. A. Parsons, Judge of the circuit court of Calhoun county, and J. E. Shaffer, from proceeding to try an appeal by the latter from the judgment of a justice of that county rendered in a suit brought by petitioner against him.

The ground alleged is that the judgment of the justice appealed from was rendered upon the award of arbitrators, to whom, by agreement of the parties in writing, the cause was submitted to arbitration, and that as section 95, ch. 50, Code 1906, provides that “Ho appeal shall be granted or allowed from the judgment of a justice rendered on an award]” the circuit court has absolutely no jurisdiction in the premises.

The answer of respondents in substance is, that the appeal was not from the judgment of the justice on the award, but from his judgment on the motion of petitioner, made within fourteen days after the date of the judgment, as provided by section 94, of said ch. 50, Code 1906, refusing, for the cause shown, to set aside the award and judgment. Said section provides ; “Every judgment on such award shall'conclude the rights of the parties, unless within fourteen days from the rendition of such judgment, it be made to appear to the satisfaction of the justice;, that the award was obtained by mistake, fraud, corruption, or other undue means. In such case, the award and judgment may be set aside by the justice, and' the cause be tried as if the arbitration had not been agreed upon.” As section 95 stood in the Code prior to' the Act of 1881, it read: “bio appeal shall be'granted to the circuit court from a judgment of a justice rendered on an award as aforesaid, unless the party praying such appeal makes oath that he believes such award to have been obtained by mistake, fraud, corruption or other undue means.”.

The order of the justice as'it appears on the transcript from the docket exhibited with the return of respondent Shaffer, taken by itself, shows that the motion made was to set aside the judgment, and not the award and judgment, as the said section 94 seems to-contemplate. But the grounds assigned for the motion were those, or some of them, on which this statute authorizes the justice on motion to set aside the award and judgment, and we think, taking the whole record together, including the appeal bond, it clearly appears that the motion actually made 'was to set aside the award and ju’dgment.

How while said section 95 says that “no appeal shall be granted or allowed from the judgment of a justice rendered on an aw'ard,” does not an. appeal lie to the judgment of a justice refusing to set aside the aisvard and judgment, for cause shown, as provided by section 94? The justice may for such cause set aside an award and judgment thereon within fourteen days, though an appeal does not lie from his judgments generally after ten days from the date of their rendition, except upon petition to the circuit court, appellant shows good cause why an appeal was not taken within ten days. If the contention of petitioner be true that’ the circuit court is without jurisdiction of an appeal from the order of the justice refusing to set aside an award and judgment for cause, then there would be no relief against his erroneous judgment, and the party injuriously effected would be' forever precluded thereby, unless a court of equity, notwithstanding the adverse judgment of the justice, could afford him relief. We think section 95 was intended to deny an appeal only where the judgment stands on an award unassailed. Ho- valid reason can be assigned for'a different construction of the statute. So we think an appeal does lié from the judgment of the justice on the motion made under said section 94. Mr. Hutchinson in his West Virginia Treatise, section 105, so concludes, and we think rightly concludes, that an appeal does lie.

We therefore deny the writ. Writ Refused.