Armentrout v. Lambert

91 S.E. 452, 79 W. Va. 602, 1917 W. Va. LEXIS 127

• Court: West Virginia Supreme Court
• Decided: February 13, 1917
• Status: Published

Opinion

Miller, Judge:

The first point of the syllabus sufficiently states the facts appearing in the record. It is apparent that the court did not intend to finally dismiss plaintiffs’ action, and to reverse its previous holding in reference to the first or common counts in assumpsit, which was concededly good on its face.

To be final and subject to review on writ of error in this court the judgment should be that the case be dismissed without day, or that the plaintiff take nothing by his suit, or otherwise refer to the disposition made of the subject matter. DeArmit v. Town of Whitmer, 63 W. Va. 300, and cases cited; Bower v. The Virginian Ry. Co., 68 W. Va. 629; Myers v. Carnahan, 69 W. Va. 136.

A well recognized exception to the general rule is where the judgment abating or dismissing the suit is upon grounds precluding further proceedings, as for want of jurisdiction, etc. In such eases the judgment or order is appealable. Underwood Typewriter Co. v. Piggott, 60 W. Va. 532; Carson v. Insurance Co., 41 W. Va. 136.

And our decisions' say that when a writ of error bas been allowed to such an order or judgment wanting in finality it will be dismissed as having been improvidently awarded. DeArmit v. Town of Whitmer, supra.

The judgment here, therefore,' will be that the writ of error be dismissed as having been improvidently awarded, but without costs to either party incurred in this court.

Writ of error and supersedeas dismissed as improvidently awarded.