DocketNumber: No. 8318
Citation Numbers: 182 S.E. 668, 116 W. Va. 575
Judges: LITZ, PRESIDENT:
Filed Date: 11/19/1935
Status: Precedential
Modified Date: 1/13/2023
I concur in the result but dissent to so much of the opinion *Page 578
as makes the payment of $5.00 to the justice a requisite to the appeal. That ruling is based on Van Faussen v. Kanawha AutoLoan Co.,
Code 1931, 50-15-1, expressly provides that "In all civil cases an appeal shall lie" upon the giving of the statutory bond. That bond secures the very fee in question. It does not seem reasonable that the legislature meant to deprive an appellant who has given bond, of his appeal, by a mere parenthetical reference to payment of a fee, already secured. The parenthetical phrase, to my mind, merely denotes the proper time and method to advance that fee. Payment at the proper time, and in the proper method, however, is not made jurisdictional; neither does the Act itself draw a deadline on the time of payment.
It should not be overlooked that the Act was designed to benefit the clerk, not the appellee. While the phrase "to accompany transcript" would indicate a legislative desire to speed the appeal, the phrase lacks an alternative provision, such as, "failure to deposit fee with justice terminates the right of appeal." That alternative is purely a judicial supplement. The Act commands the clerk to collect in advance and the litigant to pay in advance, but provides no penalty for the neglect of either. The Act is self-executing without a penalty this far: without payment in advance, the clerk *Page 579 should not perform the service and the cause of the litigant should not be advanced. I can see no greater right in a court to supply a penalty omitted from a civil statute, than to supply a penalty omitted from a criminal statute. The latter is never done, where the common law imposed no penalty for the offense.
If the clerk's fees are paid in advance of services, what possible difference can it make whether the appellant pays the fee to the justice (who then sends it to the clerk along with the transcript) or to the clerk in advance of the arrival of the transcript or concomitant with its arrival, or even afterwards, if before service is rendered by the clerk and before opposition to the delay is registered by the appellee? In each hypothesis the purpose of the Act — payment in advance of service — is accomplished.
I find no more warrant in the Act for making payment in advance of the fee on civil appeals jurisdictional than payment in advance of any other clerk's fee. If payment in advance of all clerk's fees is to be held jurisdictional (and consistency so demands), the complications arising from that holding need but one illustration. The Act provides that if the number of witnesses exceeds five, the initial fee charged at the institution of the suit shall be supplemented by fifty cents for each additional witness. Suppose, during the heat of a trial, payment of that fee in advance of using the sixth witness should be overlooked, and the case should proceed to judgment. Nevertheless, that oversight would at once deprive the court of jurisdiction, and all further proceedings would be void. A result to be deplored.
The arguments advanced herein did not attract my attention (if made) in the Van Faussen case. Moreover, that case involved merely the effect of a worthless check given in payment of the clerk's fee; and it seems to me that the pronouncement therein that the fee must be deposited with the justice is obiter and not binding under the rule of stare decisis. *Page 580