82 W. Va. 250 | W. Va. | 1918
This is a writ of error by defendant to the judgment of the circuit court rendered against it in favor of plaintiff upon an appeal by it from the judgment of a justice.
Defendant is a foreign corporation and service of the summons of the justice was had upon it by acceptance of the Auditor only, which of course was sufficient to confer jurisdiction, but for some reason not apparent from the record defendant did not appear before the justice to make defense to the action.
No formal complaint was filed before the justice, but according to the summons plaintiff’s action was for the recovery of money due on contract in which he would claim judgment for $300.00, exclusive of interest and costs. The transcript of the justice’s docket makes no note of the filing of any complaint or 'claim by plaintiff on the date of the summons; but, on December 23, 1916,. the return day thereof, his docket shows that plaintiff with his attorney appeared and filed a sworn statement of account against the defendant for the sum of $150.00, alleged to be due on health and accident policy No. 3336756, covering illness from September 1, 1916, to November 17, 1916, with affidavit thereto that the defendant corporation ‘'is due him the sum of $150.00, as per above itemized statement, and that said Continental Casualty Company, a corporation, is due affiant said sum of $150.00, after allowing all credits, counter claims and sets-off.” After waiting one hour, and without other evidence than the affidavit, the justice proceeded to pronounce judgment for plaintiff against defendant for the sum claimed by him therein. Subsequently, on January 2, 1917, defendant appeared be
At the subsequent May term the order entered in the case shows that the plaintiff then tendered, and, over defendant’s objection and demurrer thereto and motion to quash the same, overruled, was permitted to file, a special plea challenging the jurisdiction of the circuit court upon said appeal for the reasons and upon the grounds alleged therein that defendant had made no appearance before the justice and filed no counter affidavit to the affidavit filed by plaintiff, and wherefore it was alleged the court had no jurisdiction of said appeal. Thereupon upon said grounds the court was of opinion to sustain plaintiff’s motion to dismiss said appeal, when, as shown by the same order, the defendant again tendered and offered to file its counter affidavit and also an affidavit of diligence, but upon objection thereto the court again denied defendant the right to file said affidavits and undertook to and did pronounce judgment against it and the sureties on its'appeal bond for the sum of $158.75, being the aggregate of the principal, interest a.nd costs, as found by the justice, with interest thereon until paid and costs. The-defendant moved to set aside said judgment and grant it a new trial, which was overruled, and defendant excepted. On the following day, May 25, 1917, the court apparently of its own motion entered an order setting aside said judgment as having been improvidently entered, and by agreement of counsel as the order recites the case was continued until the next term.
On August 22, 1917, when the case was again called defendant again tendered and asked leave to file its counter affidavit as required by said section 50a, chapter 50, Barnes’
The primary question presented for decision is, has section 50a, of chapter 50, Barnes’ Code, 1916, being chapter 79, Acts 1915, so modified the law as it previously existed as to make it a condition precedent to the right of a defendant to appeal from the judgment of a justice‘and to give the circuit court jurisdiction of such appeal that he should have appeared before the justice and filed his plea or answer with counter affidavit as provided therein and made defense in the justice’s court? Although section 2, of chapter 79, of said Act of 1915, repeals all acts and parts of acts inconsistent therewith, we do not think it was intended to make any change in the provisions of said chapter 50, relating to the right of appeal to the circuit court. That act is an independent statute. It does not purport to be an amendment or addition to said chapter 50, of the Code: besides there is nothing in it inconsistent with any section or provision of said chapter. Section 163 thereof provides that in all cases an appeal shall lie under the regulations therein prescribed fi’om the judgment of a justice to the circuit court of the county, when the amount in controversy on the trial before the justice exceeds fifteen dollars, exclusive of interest and costs, or the case involves the freedom of a person, the validity of a law or an ordinance, etc. And all that is required by section 164, of that chapter, is that within ten days after the judgment rendered appellant shall give a bond as therein provided and, approved by the justice. When this has been done the appeal is thereby perfected and its effect, un
Moreover, prior to the enactment of said section 50a, it was regarded unnecessary for the defendant to have appeared in the justice’s court, or filed any pleading there as a condition of his right to appeal. In Jones v. Browse, 32 W. Va. 444, judgment was rendered by the justice on default of appearance by defendant, and defendant, as in this case, appealed to the circuit court, where for the first time he appeared and filed his pleas. It was held to be error to deny him his plea, and the case was reversed and remanded for further proceedings. Defendant’s right to make defense in the circuit court was not. even questioned in that case. In Longacre Colliery Co. v. Creel, 57 W. Va. 347, the judgment of the justice was for the defendant without pleadings to support it, and upon appeal this judgment was reversed by this court and remanded to the circuit court in order that proper pleadings might be filed therein and the case properly heard and determined in that court. In Poole v. Dilworth, 26 W. Va. 583, the right to file new pleadings in the circuit
It is true section 169, of said chapter 50, provides that: “The appeal may be tried upon the pleadings made up in the justice’s court, or the pleadings may be amended before or during the trial of the appeal, when substantial justice will be promoted by the amendment. ’ ’ But as we have seen from the eases just cited this statute has never been construed to limit the parties to amendment of pleadings filed before the justice, but in a broader and more comprehensive sense as including new and different pleadings when necessary to the ends of justice. To construe the statute otherwise would be to deny rather than promote justice, and to impose more technical rules in such cases than obtain in cases begun and prosecuted in the circuit courts. “An appeal from the judgment of a justice, which under the law is tried de novo in the appellate court, is a continuation of the same action, ’ ’ not a new suit. Bratt v. Marum, 24 W. Va. 652.
What effect then should be given said section 50a, on the right of a defendant and appellant to file his counter affidavit and answer in the appellate court; ? This statute was evidently copied from section 46, chapter 325, of the Code. The language is substantially the same. To cut off defenses under that statute, as has been decided, plaintiff’s affidavit must substantially comply with the requirements thereof. The statute now involved is that: “Where the plaintiff has filed with the justice on or before the return day of the summons, a complete statement of the items of his account, together with an affidavit stating that there is, as he verily believes, due and unpaid to him from the defendant, including principal and interest, after deducting all payments, credits and sets-off made by the defendant, and to which he is entitled, a sum certain to be named in the affidavit, no answer shall be filed before the justice, unless defendant shall file with his answer, his affidavit stating that there is not, as he verily .believes, any sum due from him to the plaintiff upon the demand or demands stated in said summons: or stating a sum certain less than stated in the affidavit, which, as he verily believes, is • all that is due from him to the plaintiff upon the demand or
It is manifest that the only purpose of section 50a, being chapter 79, Acts 1915, was to regulate the practice in justice’s, courts, and of course also upon appeal in the circuit courts,
Our conclusion is to reverse the judgment, reinstate the appeal, and remand the ease to the circuit court for further proceedings to be had therein in accordance herewith and further according to rules and principles applicable in such cases. Reversed and remanded.