Legal

Ask a Lawyer and Get Answers to Your Legal Questions

Ask a Lawyer,
Get an Answer ASAP!

Legal

I have an issue with a motion in a civil small claims court

Customer Question
in WV. I am a defendant...
I have an issue with a motion in a civil small claims court in WV.
I am a defendant in a case that I filed a motion the first time explaining that my father is having a life threatening surgery for Pancreatic caner in another state. which I filed a motion for continuance with Magistrate till after I return. Along with the motions I sent the emails from my father explaining when and where the surgery will take place. The Magistrate granted the continence however the date was moved to a date while the surgery is taken place....
thinking this was an error, I filed a second motion explaining the situation and enclosed airline tickets explaining that I will not be in town and asked that it be moved to a date when I return,,,, The Magistrate denied the second motion for continuance.
Isn't that prejudice? What are my options an appeal? If I don't show up at on that date the judge will more than likely grant a default judgement in the Plaintiff's favor. What can I do?
Submitted: 1 year ago.Category: Legal
Show More
Show Less
Ask Your Own Legal Question
Answered in 1 day by:
9/17/2016
Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Law Educator, Esq.
Category: Legal
Satisfied Customers: 121,057
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Verified
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Unfortunately, a judge controls their own calendar and motions for continuance are at the sole discretion of the judge and cannot be appealed. It is not discrimination, legally discrimination is defined as any action taken against you only because of your own age/race/sex/disability/national origin. Legally it is not discrimination for a judge to deny a continuance because a party cannot make it to court because a family member has a medical condition, that is solely up to the judge to decide whether or not they want to continue the matter I am sorry to say.
Ask Your Own Legal Question
Customer reply replied 1 year ago
I belive it is within my right that if I go ahead and be with my dad and a default judgment is rendered. I have 20 days to appeal the default judgement to be heard in circuit court. Or would it be best to file a motion now before the date set by the Magistrate on 9/22/16 to have it moved from Magistrate to Circuit Court
Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
While you believe it is within your rights, it may be your moral obligation but your belief is not supported by the law. So you cannot appeal his denial of your request for continuance I am afraid. I understand you have a problem and a conflict and it is up to you to impress that upon the judge. If the judge still refuses, then you cannot appeal his denial of continuance under the law. So you need to file a motion to reconsider the continuance and submit your request again and explain that because you are going to be out of town you request the judge to reconsider your previous motion and grant the new continuance.
However, you would not succeed in getting it moved to the circuit court or even appealing if your only basis is not showing up because of your dad's surgery after the judge has already denied the continuance based on those same reasons as that is a decision of a judge that is non-appealable under law.
Ask Your Own Legal Question
Customer reply replied 1 year ago
How much would it cost me to write a last min pleading mition for continuence
Customer reply replied 1 year ago
Should i say assist me
Customer reply replied 1 year ago
In reference to your second reply. I undeesatnd I cant appeal the denial however I can appeal the judgement. I belive in WV If I appeal the judgement within 20 days then it would be sent to Circuit Court for review and set to be heard if he so decides to do so
Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
We are forbidden by state law from assisting customers in writing any pleadings, I am sorry about that.
As far as an appeal, if you get a default judgment against you for not appearing, you still have to have an issue on appeal in order to appeal to the circuit court. You not appearing because the court denied your motion for continuance is not going to be a sufficient issue and that would be the problem with you appealing an adverse judgment against you. In order to succeed on an appeal for only that issue, you would have to prove "abuse of discretion" on the magistrate, meaning you have to prove that no other reasonable magistrate given the same information would have denied continuance and that is an incredibly difficult burden to meet.
Ask Your Own Legal Question
Customer reply replied 1 year ago
Could I file to have the Magistrate disqualified?
Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
The only way to have him disqualified is presenting evidence of bias against you. Ruling against you on a continuance is not evidence of bias, since that is within his discretion and is a legal determination, you would need some other evidence of bias to have him removed.
Ask Your Own Legal Question
Customer reply replied 1 year ago
With reference to this rely: "In order to succeed on an appeal for only that issue, you would have to prove "abuse of discretion" on the magistrate, meaning you have to prove that no other reasonable magistrate given the same information would have denied continuance and that is an incredibly difficult burden to meet" Wonder if she is the only Magistrate in the county... Which she is. There are 3 circuit Judges, 1 Magistrate. So would it not have to be heard by a Circuit Judge? At least that is what the appeal process is telling me... Maybe I am wrong here. Also does it not say that I can appeal 20 days after the denial of a motion A) 2.Appeal to circuit court.(a)Any party to a final judgment may as a matter of right appeal to circuit court. Notice of appeal shall be filed in magistrate court: (1)Within 20 days after judgment is entered; or
(2)Within 20 days after the magistrate has denied a motion for a new trial.(b)The magistrate shall require the appellant to post a bond with good security in a reasonable amount not less than the sum of the judgment and the reasonable court costs of the appeal, upon the condition that such person will satisfy the judgment and any court costs which may be rendered against the appellant on the appeal. The magistrate court clerk or deputy clerk shall collect the bond and the circuit court filing fee at the time the appeal is filed unless the person or entity filing the appeal is permitted to proceed without prepayment. The magistrate court clerk or deputy clerk shall forward any collected bond and fee along with the appropriate documents to the circuit court clerk.
Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
Any party can appeal, IF THEY HAVE LEGAL GROUNDS TO APPEAL. If you have no legal grounds to appeal other than claiming the continuance was denied, then you can be made to pay the plaintiff's attorney's fees and costs for having to respond to your appeal.
People cannot just appeal everything without legal cause or grounds to do so. You have to appeal within 20 days of the denial of your judgment being entered against you.
Ask Your Own Legal Question
Customer reply replied 1 year ago
One last thing the Plantiff contacted me through a lengthy detailed text stating that he would settle about 5 days ago. I drew up the settlement and sent it which he received by mail. He even contacted the court. Then when he found out the next day after the settlement that the continuence was denied because he thought the judge would grant the continuence which he text me that as well. Well he told me that now the continuence was denied and that I will be out of town, he changed his mind knowing he woukd get a default judgement. Isnt that something? I just wrote the new motion pleading her to reconcider based on me being out if town AND the settlement retraction based on the deniel of contiuence, and I sent cooies of the texts and settlement letter and postal recipt.
Customer reply replied 1 year ago
Would that change the scooe of the appeal?
Customer reply replied 1 year ago
Scope
Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
Under the Rules of Evidence, settlement cannot be introduced in trial. So the fact he offered a settlement and then changed his mind would really not have any bearing on your appeal grounds. The bot***** *****ne here is your whole complaint in this matter is the judge will not continue your case, there are no other legal issues at this point and that is one of the few things that just cannot be appealed as it is solely discretionary to the judge. I would really suggest perhaps showing up for trial and then leaving town immediately thereafter.
Ask Your Own Legal Question
Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 121,057
121,057 Satisfied Customers
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law

Law Educator, Esq. is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it.

LeeMichigan

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

8,775 satisfied customers

JD, BBA Over 25 years legal and business experience.

Ely

Ely

Counselor at Law

24,353 satisfied customers

Private practice with focus on family, criminal, PI, consumer protection, and business consultation.

INFOLAWYER

INFOLAWYER

Attorney

20,727 satisfied customers

Licensed attorney helping individuals and businesses

JPEsq

JPEsq

Attorney

2,132 satisfied customers

Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor

Law Educator, Esq.

Law Educator, Esq.

Attorney

121,057 satisfied customers

JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law

Ellen

Ellen

Lawyer, Consultant

8,238 satisfied customers

25 years of experience helping people like you.

Guillermo J. Senmartin, Esq.

Guillermo J. Senmartin, Esq.

Attorney

292 satisfied customers

7+ years of experience handling various legal matters.

< Previous | Next >

Related Legal Questions
I am appealing a restraining order in Oregon's Circuit Court
I am appealing a restraining order in Oregon's Circuit Court Tomorrow, and need to understand the protocol at such a proceeding. … read more
Nisha Jones, Esq.
Nisha Jones, Esq.
Juris Doctorate
1,778 satisfied customers
My son is looking for a small claims attorney in the Omaha,
my son is looking for a small claims attorney in the Omaha, NE area. he had damage to his home, insurance paid to have it repaired but the roof continues to leak. he has made numerous attempts to cont… read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
121,057 satisfied customers
I filed a small claims against Verizon. Was awarded
I filed a small claims against Verizon. Was awarded $6500.00. However, Verizon filed a motion in district court (not small claims) for award to be vacated. Was granted.Even so, contact states both Ver… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,340 satisfied customers
I'm a plaintiff needing to immediately in small claims court
I'm a plaintiff needing to immediately in small claims court file a Motion to Strike a Motion to Quash/Dismiss. I have two concurrent small claims cases in two cities. The defendant submitted a Motion… read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
121,057 satisfied customers
What happens in a small claims/eviction when a defendant is
what happens in a small claims/eviction when a defendant is not properly served the summons papers … read more
LegalGems
LegalGems
Juris Doctorate
10,686 satisfied customers
What is the highest limit in small claims court in nc.
what is the highest limit in small claims court in nc … read more
Lori
Lori
Juris Doctor
275 satisfied customers
I am contemplating a small claims action and this is my
I am contemplating a small claims action and this is my first. My wife and I purchased two cell phones and related agreements from Victra/Verizon and promises were made; etc. Part of their process is … read more
Phillips Esq.
Phillips Esq.
Attorney
Juris Doctor
45 satisfied customers
What is the maximum dollar limit for Colorado small claims.
What is the maximum dollar limit for Colorado small claims … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,340 satisfied customers
Does a motion for additur also included a new trial. Fl. 14
Does a motion for additur also included a new trial … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,340 satisfied customers
My small claims court date was postponed by the defendant
My small claims court date was postponed by the defendant from October 24 as he works in China. He set the date for January 4. I have business in Australia until Jan 6. Please list the following Janua… read more
socrateaser
socrateaser
1,442 satisfied customers
Can a retired circuit court judge in Nashville, Tennessee
Can a retired circuit court judge in Nashville, Tennessee preside over a civil wedding in Aspen,Colorado and sign the marriage certificate? If not are any commits rules that would authorize his author… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,340 satisfied customers
Is it difficult to contest a small claims decision when you
Is it difficult to contest a small claims decision when you feel the underlying decision was not fair … read more
Ely
Ely
Counselor at Law
Juris Doctor
24,353 satisfied customers
Can one circuit court judge overturn another's decision on a
Can one circuit court judge overturn another's decision on a matter already heard … read more
Ray
Ray
Lawyer
Doctoral Degree
30,854 satisfied customers
I received a circuit court disposition order in and for
I received a circuit court disposition order in and for browsed county . It says restitution converted to civil lien. I have several questions… read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,298 satisfied customers
Filed motion to stay money judgement in circuit court
filed motion to stay money judgement in circuit court pending appeal refused to rule citing lack of jurisdiction appellate court denied … read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
121,057 satisfied customers
9-22-17 draft ______________ In the 8th Circuit Court of
9-22-17 draft ______________ In the 8th Circuit Court of Cheshire County State of New HampshirePlaintiff, Amy Zuckerman Vs, Defendant, ***** *****COMPLAINTNow comes the Plaintiff, Amy Zuckerman, and f… read more
Ray
Ray
Lawyer
Doctoral Degree
30,854 satisfied customers
When does a circuit court want a "line"? Adding a name or
When does a circuit court want a "line"? Adding a name or fixing an address? Why can't we just submit a revised form? Are there rules for when a line needs to be filed and how to do it?… read more
TJ, Esq.
TJ, Esq.
Juris Doctor (JD)
11,256 satisfied customers
I need to submit a memorandum of appeal to the circuit court
I need to submit a memorandum of appeal to the circuit court opposing a district court judgement. I need help with format of the memorandum for Maryland courts and also maybe some help in writing the … read more
Irwin Law
Irwin Law
Juris Doctor JD
7,089 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x