Acts of the Legislature of West Virginia, at its Eleventh Session, 1872-73.
Charleston: Henry S. Walker, 1873
AN ACT organizing the supreme court of appeals, defining its jurisdiction and powers, and prescribing its manner of proceeding.
Be it enacted by the Legislature of West Virginia:
1. That the supreme court of appeals shall consist of four judges, elected and qualified according to the constitution and laws, any three of whom shall be a quorum.
2. They shall designate one of their body to be the president of said court. In the absence of the president, any other judge designated by the judges present shall act as president.
3. Three sessions of the supreme court of appeals shall be held every year. One in Charleston, in the county of Kanawha, commencing on the second Wednesday in January: Provided, that the session in 1873 shall commence on the thirteenth day of January; one in Charlestown, in the county of Jefferson, commencing on the first Wednesday in August; and one in Wheeling, in the county of Ohio, commencing on the first Wednesday in June, and continue until the business is dispatched.
4. The original jurisdiction of the court of appeals shall extend to cases of habeas corpus, mandamus and prohibition. The appellate jurisdiction shall ex tend to civil cases where the matter in controversy, exclusive of costs, is of greater value or amount than one hundred dollars; in controversies concerning the title or boundaries of lands; the probate of wills; the appointment or qualification of a personal representative, guardian, committee or curator; or concerning a mill, road, way, ferry or landing, or the right of a corporation or county to levy tolls or taxes; and also in case of quo warranto, habeas corpus, mandamus and prohibition; and in cases involving freedom or the constitutionality of a law. It shall have appellate jurisdiction in criminal cases where there has been a conviction for felony or misdemeanor in a circuit court, and where a conviction has been had in any inferior court and been affirmed in a circuit court. All suits and proceedings which shall be pending in the present supreme court of appeals, on the thirty-first day of December, in the year eighteen hundred and seventy-two, shall be proceeded in and determined by the supreme court of appeals, the judges of which were elected on the twenty- second day of August, eighteen hundred and seventy- two.
5. The supreme court of appeals, or judges thereof in vacation, may appoint a clerk. They may also appoint a tipstaff and messenger for each place of holding the said court. All of which said officers shall be removable at the pleasure of said court or judges.
6. The clerk, before entering upon the discharge of the duties of his office, shall, before the said court, or judges in vacation, execute a bond with good security in the penalty of two thousand dollars, payable to the state of West Virginia, conditioned for the faithful discharge of the duties of his office.
7. The state shall be divided into three judicial grand divisions, as follows: The first grand division shall consist of the counties composing the first, second, fifth and sixth judicial circuits; the second grand division shall consist of the counties composing the third and fourth judicial circuits; the third grand division shall consist of the counties composing the seventh, eighth and ninth judicial circuits. Each case shall be heard and determined in its own grand division, except by consent of parties or their counsel, in writing, or unless the parties desiring the hearing shall have given written notice of at least thirty days before the commencement of the term, to the opposite party or his counsel of his intention to insist on a hearing; when the same may be heard and determined out of its grand division.
8. Before the commencement of each session of the court of appeals the clerk shall make out a docket of the causes then ready for hearing in the grand division where the session of the court is about to be held. They shall be numbered by figures, and shall be docketed in the order in which the records were received, and be heard in the same order, except for good cause shown the court may order otherwise. The docket shall be arranged in such order as the court may designate, and to each circuit the clerk shall assign a reasonable portion of the term. Thirty days before the term is to commence, the clerk shall cause to be printed on a sufficient number of slips the order in which the circuits are arranged, the causes for trial and the days assigned to each circuit, and mail one copy thereof to each judge of the supreme court of appeals, and to each judge of a circuit court, and ten copies to each clerk of a circuit court. The court shall hear the causes in that order; except that, when the cases from any circuit are not all heard on the days assigned to it, they shall not be heard on days assigned to another circuit, when it will interfere with causes therefrom, but may be heard when there will be no such interference.
9. No decision rendered by the supreme court of appeals shall be considered as binding authority upon any inferior courts of this state, except in the particular case decided, unless such decision is concurred in by at least three judges of the court.
10. When a judgment or decree is rendered or affirmed by the supreme court of appeals, every point fairly arising upon the record of the case shall be considered and decided; and the reasons therefor shall be concisely stated in writing and preserved with the record of the case; and it shall be the duty of the court to prepare a syllabus of the points adjudicated in each case concurred in by three of the judges thereof, which shall be prefixed to the published report of the case.
11. If at any time there be on the docket of the supreme court of appeals, at either place of session, a case in respect to which a majority of the judges of said court are so situated as to make it improper for them to sit on the hearing thereof, that fact shall be entered of record.
12. The supreme court of appeals shall not hear parol testimony in any case.
13. The supreme court of appeals shall affirm the judgment, decree or order, if there be no error therein, and reverse the same in whole or in part, if erroneous, and enter such judgment, decree or order as the court whose error is sought to be corrected, ought to have entered, affirming in cases where the court is equally divided, In the case of an appeal from an order granting a new trial, or re-hearing, if the order be reversed, such final judgment, decree or order shall be rendered or made in the case as the appellant was entitled to in the court below.
14. When any judgment, decree, or order is affirmed in the supreme court of appeals, damages shall be awarded to the appellee. Such damages, when the judgment, decree or order is for the payment of money, shall be at the rate of [six] per centum per annum, on the whole amount of the recovery, including interest and cost, from the time the appeal took effect, until the decision of the supreme court of appeals is entered in the order book of the court below; which damages shall be in satisfaction of all interest during that time. When the judgment, decree or order is not for the payment of any money, except costs, the damages shall be such specific, sum as the supreme court of appeals may deem reasonable, not being more than one hundred dollars.
15. When any term of a supreme court of appeals: is ended, or sooner if the court so direct, the clerk thereof shall certify and by mail or otherwise transmit its decision to the clerk of the court below, except that it shall not be his duty to certify or transmit a copy of such decision unless the prevailing party shall have paid all fees due from him in the cause, and also an amount sufficient to pay the postage thereon. If any clerk shall fail to comply with this section for twenty days, except as aforesaid, he shall forfeit fifty dollars to any person aggrieved.
16. The court from which any case may have come to the supreme court of appeals, shall enter the decision of the appellate court as its own, and execution thereon may issue accordingly. If such decision be received by the clerk of the court below in vacation, he shall enter it of record in his order book, and thereupon such execution may issue and such proceedings be had in the case as would have been proper if the decision had been entered in court.
17. All acts or parts of acts inconsistent with this act, are hereby repealed.
18. This act shall be in force and take effect from and after its passage.
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