Kyle v. Jenkins

Citations

• 6 W. Va. 371
• 1873 W. Va. LEXIS 44

Syllabus

<p>Syllabus.</p> <p>1. Ia a suit at law, in which an attachment was sued out and levied on property of the defendants, and judgment obtained therein against the defendants, on publication, a part of the defendants appeared in the court in which the judgment was rendered within five years from the rendition of the judgment, .and tendered to the court their petition praying for a re-hearing of the proceedings in the action, without accompanying the petition with the affidavit prescribed and required in such case by the act of the Legislature, passed on the 11th day of March 1865, entitled “An act to amend and reenact secs. 23, 27 and 28 of Chap. 151, and sec. 13 of Chap. 170 of the Code of Virginia,” -which affidavit so prescribed is commonly known and called “the suitors test oath.” The court refused to receive, and allow the petition to he filed. Held,</p> <p>That it-was error in the Circuit Court to refuse to allow said petition to he filed, on the ground that it was not accompanied hy such affidavit or test oath.</p> <p>2. So much of the said act of the Legislature as prescribes such affidavit or test oath is contrary to the Constitution of the United States, and was therefore null and void from its passage. The petition for re-hearing in this case is sufficient, and should now he received hy the Court below.</p>