45 W. Va. 460 | W. Va. | 1898
On the 20th of October, 1893, H. C. Griffin, assignee of M. Chapman, sued out a summons before C. A. Trough, justice of Doddridge County, against M. L. Haught, returnable November 7, 1893, at which time the parties appeared, and the defendant filed his affidavit for a continuance, which was granted until November 14, 1893, on which last-mentioned day (T. J. Haskins sitting with C. A. Trough, justice) the parties appeared by their attorneys, and the defendant moved to quash the summons in the case for irregularities, which motion was overruled, and the case put on trial; and, the evidence being heard, judgment was rendered for the plaintiff for one hundred and forty-three dollars and fifty-five cents, and ten dollars and fifteen cents, costs of the action, from which judgment the defendant appealed to the circuit court of Dod-dridge County, and filed his bond in the penalty of three hundred dollars, with Harvey Smith as his surety. On the 28th of November, 1894, a jury was impaneled in said court, and, having heard the evidence, the jury, on the 29th of November, returned a verdict for the defendant in the sum of seven dollars, when the plaintiff moved the court to set aside the verdict of the jury, and grant him a new trial, because the verdict was contrary to the law and
Defendant applied for, and obtained from this Court, a writ of error to said judgment, on the following assignments of error: (.1) That the trial had on the 14th day of November, 1893, before C. A. Trough and T. J. Has-kins, justices of the peace, was without authority of law; that jurisdiction of the case was then lost; that the said judgment of said justices was null and void, and the circuit court obtained no jurisdiction to hear and determine said action by trial, and the same should have been dismissed by said court. (2) That said circuit court erred, on the 27th day of November, 1895,. in setting aside said verdiettheretofore rendered in favor of said defendant. (3) The court erred in giving to the jury the instructions embraced in bill of exceptions No. 1, especially the last section thereof, which wholly ignores the answer or plea of defendant, alleging fraud and deception, and the evidence showing misrepresentation as to and suppression of the fact of payment of said oil-lease rental or forfeit money, and because said last clause conflicts with the other parts of the instruction, and had a tendency to confuse and mislead the jury. (4) The court erred in refusing to give the instruction asked for on behalf of the defendant, and set forth in the second bill of exceptions. The contract and deed show that said Haught was entitled to all the
On the day the summons was returnable (November 7th), the defendant appeared, and moved for a continuance. On the 14th of November, when the case was called for trial, the defendant moved to quash the summons, for the the reason that it was addressed “to L. G. Duff, a special constable,” and no appointment was noted in the docket, in compliance with sections 30 and 31, chapter SO, Code. The object of service of process is to bring the party into court; and the appearance to the action in any case for any other purpose than to take advantage of the defective execution or nonexecution of process places a defendant in precisely the situation in which he would be if process were executed upon him, and he thereby waives all objection to the defective execution or nonexecution of process upon him. Mahany v. Kephart, 15 W. Va., 609; Bank of the Valley v. Bank of Berkeley, 3 W. Va., 386; Venable v. Coffman, 2 W. Va., 310. The defendant’s first appearance was on the return day, so that when he moved to quash, on the 14th of November, the day to which he had it con-' tinued, his motion could not be entertained, under the authorities above cited; but, if that had been his first appearance, it must have been a special appearance for the purpose only of quashing the summons or return, and it must be so stated in 'submitting his motion. Layne v. Railroad Co., 35 W. Va., 438, (14 S. E. 123); Blankenship v. Railway Co., 43 W. Va., 135, (27 S. E. 355).
It is insisted that Justice Trough lost jurisdiction because Justice T. J. Haskins sat with him at the trial. The Constitution Art. VIII. Sec. 28 provides that “the jurisdiction of justices of the peace shall extend throughout their county.” It is admitted that Haskins was a j ustice of the peace of that county., He had concurrent jurisdiction with Justice Trough; and, in case it be for any reason improper for the justice issuing the summons
Appellant claims that no pleading, either complaint or answer, were filed before the justice, and no oral pleading noted in the transcript. The first order made in the case by the circuit court, as appears from the record, was on
As to the second assignment, there is nothing in the record to show what evidence was given at the first trial in the circuit court, or what rulings of the court, if any, were to the prejudice of appellant; no exceptions being taken to enable this Court to see whether the verdict was contrary to the law and the evidence, or not. “In the absence of a bill of exceptions making the evidence of facts proved on the trial a part of the record, this Court will presume that the judgment of the court below was proper.” Todd v. Gates, 20 W. Va., 464 (Syl. point 6).
Considering the third assignment, it is only the last clause of the instructions given by the court that is complained of, and which is as follows: “If the rental money was collected by Chapman before he sold his land to Haught, then the samedid not pass to Haught, either by the contract of sale or assignment of the oil lease;” and viewed in the light of the contract between the parties, dated 22d of April, 1891, and of the deed of date August 18, 1891, and of the lease, let us see whether that clause of the instruction is bad or liable to objection. The said contract contains this provision: “It is further agreed that inasmuch as the land described in this article is leased for
The line of defense as disclosed .by the testimony' is strictly in harmony with the written contract of April 22d, the deed of August 18, 1891, and with the lease of March 8, 1890, except that the defendant claims the benefits of the lease prior to April 22, 1891, while the contract and the deeds say the benefit of the lease shall accrue to him from April 22, 1891. It is not claimed that appellee collected more than the first year’s rental or forfeit, and that was, under the lease, payable before the parties began to neg-o-tiate for the sale and purchase of the land. The clause of the instruction excepted to is not inconsistent with the first part of the instruction, nor is it bad under the theory upon which the case seems to have been tried.
This also disposes of the fourth assignment, — that the court erred in refusing the instruction set out in the second bill of exceptions, as follows: “The jury are instructed that under the contract between M. Chapman and M. L. Haught, bearing- date the 22d day of April, 1891, M. L. Haught was entitled to his proportional share of the yearly forfeit money of the $150, under the lease * * * dated March 8, 1890, and assigned to the South Penn Oil Company, the proportional share being as 45 days to Chapman and 320 days to Haught.” This instruction was properly refused, because it is clearly in conflict with a proper construction of the lease as above set out, and was evidently so construed by the trial court. It follows that the court did not err in overruling the motion to set aside the verdict of the jury, and grant a new trial; and the judgment rendered by the court for one hundred and seventy-nine dollars and fourteen cents, with
Affirmed.