34 W. Va. 652 | W. Va. | 1891
In 1889 the Buena Vista Freestone Company instituted an action, before a justice in Cabell county against M. F. Parrish and II. M. Maloney to recover a debt due on anote for one hundred and twenty dollars. On the return-day of the summons the defendants appeared, and obtained a continuance. On the day to which the case had been continued the defendants appeared, and filed a plea that the note sued on, which had been filed with the justice, had been obtained
The only question in this Court is whether there was any such error committed by the justice, as justified the Circuit Court in reversing his judgment; and that depends on the answer to the following questions: What was the proper course for the justice when the plaintiff failed 'to ' appear, and the defendants filed their plea? Should he have allowed a jury trial, or should he have dismissed the case for failure of the plaintiff to appear and prosecute his suit, without prejudice to another suit ? According to the practice in courts of record at common-law, if the defendant appear and file his plea, and the plaintiff* does not appear to reply to it, or do what is necessary to bring the cause to issue, there is judgment against him by non prosequitur. Where a defendant- does not appear, there is judgment against him by default; or if he appears, and says nothing in defence, there is judgment against him by nil (Licit; in both cases the' judgment conceding to the plaintiff* the relief called for by his action. Or, where he fail's to answer any pleading' of the plaintiff during the -process of.' the
Speaking of default of the parties to prosecute or defend, 1 Bouv. Law Diet. 494, under the word “Default,” says: “When the plaintiff makes default, he may be nonsuited; and, when the defendant makes default, judgment by default is rendered against him.” This judgment as against defendant would be forever final; but the judgment of nonsuit against plaintiff would not be final, but would allow another suit. Com. Dig. “Pleader,” E. 42, B. 11; Bouv. Law Diet, tit., “Judgment by Default.” 7 Vin. Abr. 429; Doct. Plac. 208. Thus, had the case been in a Circuit Court, no jury trial could have taken place. All that the defence could have had was a nonsuit. The plaintiff filed his note, operating as his complaint, under Code 1887, c. 50. s. 50, cl. 8. The defendants filed -a plea, in nature one of confession and avoidance, not denying the note, but alleging that it was procured by fraud, and was without consideration ; and the defendant failed to appear and answer
It is true, this case was in a justice’s court, and no formal pleadings are there required. Still, those courts are governed by some rule and method; and practice in them, where not otherwise provided, ought to be assimilated to ordinary legal procedure. "W as there, after this plea was filed, and no denial of it in any manner, any matter in controversy or issue? Code, c. 50, s. 86, requires the jury to be sworn “to try the matter in difference;” but here there was no matter in difference to be tried. But I think that section 66, c. 50, Code 1887, shows that the justice should simply have dismissed the action, and not allowed a jury; for it provides as follows : “Saving the right of a defendant, who has filed a set-off or counter-claim, to proceed to trial though the plaintiff fail to appear or dismiss his action, judgment may be rendered against the plaintiff dismissing his action, with cost, but without prejudice to a new action for the same cause, in the following cases: First, if he fail to appear and prosecute his action within one hour after the time for appearance mentioned in the summons or last order of continuance.” Now, this simply provides for the common-law nonsuit in justices’ courts. By reserving to a defendant who has filed a set-off or counterclaim the right to go on to trial on the merits though the plaintiff has failed to appear, it in effect, by plain implication, says that in no other case shall the defendant go on to trial where the plaintiff fails to appear; but in other cases it gives the right to the adverse party to demand a dismissal. This is the extent of his right in such case. It is just the same as a defendant in an action in a Circuit Court would have.
For this error for failing to enter the only judgment to be entered — one of dismissal for plaintiff’s failure to appear —and the trial of the case by a jury, and final judgment thereon, I think the Circuit Court properly reversed the judgment, and ought to have done so had there been no
ArEIRMED.