Nicola v. Williams

136 S.E. 512, 103 W. Va. 29, 1927 W. Va. LEXIS 8

• Court: West Virginia Supreme Court
• Decided: January 18, 1927
• Docket: C. C. 395
• Status: Published

Opinion

Miller, Judge:

In this action of trespass on the case, counsel for the defendant appeared specially and moved the trial court to quash the summons and return. The order of the court ruling on the motion recites: “It is therefore considered by the Court that said summons be quashed, and said suit dismissed, to which action of the Court the plaintiff, by his attorney, excepts ; and the Court thereupon, upon its own motion, certifies this cause to the Supreme Court of Appeals of West Virginia, for its decision upon the sufficiency of said summons and return. ’ ’

The order of the circuit court dismissing the action is a final one; and this court has no jurisdiction except by writ of error. “A final order is not reviewable by this court upon joint application of the parties, or by the court’s own motion, under the latter part of section 1, chapter 135 of the Code.” State v. Crockett, 94 W. Va. 423; Heater v. Lloyd, 85 W. Va. 570; Gas Company v. Shreve, 90 W. Va. 277; Marks v. Mitchell, Id. 702; Saffel v. Woodyard, Id. 747; Lee v. City of Elkins, 97 W. Va. 183.

The case will therefore be dismissed for want of jurisdiction of this court to consider the questions presented by the circuit court’s certificate.

Dismissed.