This proceeding was instituted by Maryland Trust Company before W. M. Case, then a justice of the peace in Webster County, against I. N. Gregory, J. R. Gregory, Bennett Gregory and J. H. Gregory on the 6th day of September, 1941, seeking to recover $170.25 alleged to be the unpaid balance on a note signed by the defendants as co-makers, payable to the Citizens Bank of Richwood, in the sum of $700.00 in four months from May 14, 1931, the date of the note, interim curtailments having kept the note alive. On October 1, 1941, judgment was rendered for the plaintiff and the defendants appealed to the Circuit Court of Webster County. After the passage of the January, May and September terms in 1942 and the January term of 1943 without good cause for a continuance having been shown, the case was tried at the May term, 1943, resulting in a hung jury. The September term, 1943, and the January, May and September terms, 1944, together with the January term, 1945, passed with nothing being done. At its May term, 1945, the Circuit Court of Webster County sustained a motion to dismiss after it had been suggested of record that the note in controversy had been assigned to C. E. Lawhead. From the order of dismissal this Court granted a writ of error, reversed that order, holding that the case should have been revived in the name of C. E. Lawhead, and upon remand effective June 24, 1946, the Circuit Court of Webster County at its next ensuing term on September 9, 1946, entered its order reviving the case in the name of C. E. Lawhead as plaintiff. Nothing further was done at the September term, 1946, in that court. On January 27, 1947, the Circuit Court of Webster County, nothing having been *Page 389 done at that term which convened on the second Monday in January, entered its order reciting the disqualification of the judge and transferring the case to the Circuit Court of Nicholas County, where it was docketed to be heard at its term convening on the third Tuesday in February. Nothing was done at that term. On May 27, 1947, neither party having brought the case to a hearing before the end of that term which convened on the third Tuesday, the Circuit Court of Nicholas County granted a motion that it render judgment in favor of the party prevailing before the justice, in this instance C. E. Lawhead, assignee of Maryland Trust Company. To that judgment the defendants below were granted this writ of error.
There was no appearance in this Court on behalf of the plaintiff in error.
The statute pursuant to which the Circuit Court of Nicholas County was acting is Code, 50-15-10. The section cited reads as follows:
"If, after the appeal is regularly placed upon the docket, neither party brings the case to a hearing before the end of the second term thereafter at which it is called for trial, the court, unless good cause for a continuance be shown, shall render judgment in favor of the party prevailing before the justice, to the same effect and for the same amount as the judgment rendered by the justice, and, in addition thereto, if the judgment rendered by the justice was against the appellant, then the judgment of the circuit or other appellate court where there has been such failure to bring the case to a hearing, shall be against the appellant and those who signed the bond, as is provided in the following section of this article. But in every case where there has been such failure to prosecute an appeal, the circuit or other appellate court shall render judgment for the costs of the appeal against the appellant and those who signed the bond."
This Court has held that the statute in question is to be literally enforced and its terms rigidly "pursued" because mandatory. We have held also that the benefit of *Page 390 its provisions is not waived by subsequent appearances in the court entertaining the appeal from a justice of the peace nor lost by a judgment in that court against the party prevailing before the justice. Gibson v. Thorne, 122 W. Va. 716,12 S.E.2d 535; Holderman v. Arnold, 127 W. Va. 562, 34 S.E.2d 15;State v. Ashworth, Judge, 128 W. Va. 1, 35 S.E.2d 351;Powers v. Trent, 129 W. Va. 427, 40 S.E.2d 837.
Under the holding of this Court in the Gibson case under Code, 50-15-0, the contrary not appearing, it is to be presumed that a case on appeal from a justice of the peace and placed upon the docket of an appellate court for trial de novo, was called for trial at each term the record shows it to have been on that docket.
This case was docketed in the Circuit Court of Webster County before its January term in 1942, and that term as well as the following May term elapsed without either the plaintiff or the defendants calling the case for hearing or having it continued for good cause shown. This circumstance caused Code, 50-15-10 to operate automatically, it having been the mandatory duty of the trial judge to see that its provisions were complied with. The fact that the case was thereafter tried and thereafter brought to this court by writ of error we think does not obstruct the operation of a mandatory statute. That is the effect of our decision of the Gibson case. If the attention of this Court had been directed to the record showing concerning nonappearances when this case was here before, the entry of a proper judgment under the controlling statute would then have been directed. But it was not. It cannot be said that the plaintiff before the justice, by going to trial in the circuit court without raising the question, waived the provisions of Code, 50-15-10. That section is mandatory. The provisions of a mandatory statute are not waived by implication. As this Court has said in the Gibson case, among others, the purpose of the statute under consideration is to accelerate the disposal of appeals from justices of the peace and to make the trial *Page 391 de novo without further process as prompt and simple as possible. Perhaps the purpose of the Legislature was not to penalize the dilatory, but it was certainly its purpose to require courts of their own motion to avoid cluttered dockets chargeable to litigants' neglect. Being of that opinion, the judgment of the Circuit Court of Nicholas County is affirmed.
Affirmed.