The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 40
The following text was automatically extracted from the image on this page using optical character recognition software:
256 FEDERAL REPORTER
ordinarily, this writ of inquiry would have been executed, the damages
ascertained, and judgment therefor rendered. This, however, was
not done, but, on the contrary, an order was entered continuing the
execution of the writ of inquiry, setting it down for trial at the fol-
lowing term, to be held commencing on the first Tuesday (the 2d)
of April, 1918, when on the third day of that term the writ of inquiry
was tried, the damages ascertained, and the judgment therefor en-
tered. Under the rules of pleading and practice of the state, which wi e
are required to follow, up to the this 4th day of April, 1918, the de-
fendants were entitled to appear, have the common order set aside, and
enter such pleas and make such defense as they might be advised to
do; but no such appearance was made. Specifications of damages
were filed, and a number of witnesses were introduced by the plaintiff
on the trial to support its demands.
It is now set forth in affidavits tendered, and not disputed, that,
shortly after defendants were served with process instituting the suit,
they employed a most reputable attorney of large practice and great
ability, resident in Wheeling, distant from Martinsburg something
near 300 miles, to represent them and protect their interests in the
case; that this attorney, under date of March 5, 1917, directed to the
deputy clerk of this court at Martinsburg a letter as follows:
"As soon as the declaration is filed in the case of Howie Mining Company v.
David McGary and W. R. Covert, please send me a certified copy of it, together
with your bill therefor."
This letter was dictated by the attorney to his stenographer, who
says he made a transcript of it, signed the attorney's name to it; made
a letter press and a carbon copy of it, addressed it to the deputy clerk
at Martinsburg, and mailed it tb him. At the instance of the clerk of
this court, his deputy at Martinsburg has made two statements, to the
effect that he has made two distinctcareful examinations of his official
files, finds no such letter therein, has no recollection of ever having
received or seen any such letter, and that his uniform custom, upon
receipt of such letters, is to answer them promptly. It is not improp-
er to say in this connection that this deputy clerk has long held this
place, is thoroughly competent, very careful and experienced in the
duties of his office, a lawyer of high standing in his profession, and a
man of the strictest integrity and honor. It would seem, therefore,
beyond question that such letter was sent, but not received.
The defendants in their affidavit say, after stating the employment of
the attorney, that upon a number of occasions they had conversations
with him, and was informed by him that he had received no reply to
this letter from the deputy clerk, and that therefore he assumed that
no declaration had been filed; that at least four months after the
bringing of the suit the attorney told them no reply had been received
to the letter, and that undoubtedly the suit had been dismissed for
failure to file a declaration therein. It further appears from these
affidavits that one Smith H. Bracey was president of the plaintiff
company; that in the criminal court at Wheeling an indictment had
been presented against him at the instance of the defendants McGary
and Covert as prosecuting witnesses; that they had employed this
Here’s what’s next.
This document can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Legislative Document.
The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/54/: accessed October 20, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.