128 S.E. 81 | W. Va. | 1925
In three separate actions before a Justice, each for the recovery of rent, judgments were entered for the plaintiff, J. G. Lambert, on March 31, 1924, May 2, 1924 and May 28, 1924, respectively. The defendant, Inter-urban Motor Company, appeared in each of said actions and made defense thereto, and following each judgment against it, gave an appeal bond. The transcripts of said judgments were severally filed with the Clerk of the Circuit Court, the third being filed with said Clerk on June 2, 1924. The Circuit Court convened on June 9, 1924, and these three cases placed on the trial docket for June 13, 1924. Lambert, the appellee, appeared in person, with his attorney, waived a jury and submitted the cases to the Court in lieu thereof, and on due proof judgments were entered against the appellant, Inter-urban Motor Company, in the sums of $273.67 and costs, $160.00 and costs, and $150.00 and costs, respectively. On June 14th, the Inter-urban Motor Company, by attorney, appeared and moved the Court to set aside the orders and judgments entered on the 13th instant, and grant it a new trial in each of said cases. This motion the Court overruled, and the Inter-urban Motor Company comes here on writ of error.
The plaintiff in error contends (1) that section 169, chapter 50, Code, forbids a hearing in the Circuit Court in less than three months from the time the transcript and papers are filed with the clerk, unless appellee has been served with notice thereof as required by statute; and (2) that since defendant (plaintiff in error here) appeared in each of the cases before the Justice, and issue was joined and judgment rendered, and an appeal taken, that the Circuit Court could not render a judgment unless a jury had been waived, and that there never was such a waiver on the part of the defendant, and that it was not in court at the time of said hearing. *137
The first point is without merit. Section 169, of chapter 50, Code, was enacted for the sole purpose of protecting the appellee in any such case from being surprised, and does not forbid a hearing if the appellee, without the statutory notice required, sees fit to make an appearance on the day the case is duly set for hearing on the circuit court docket. The statute in no manner aids the appellant, except, if it so desires, it may hasten a hearing by giving the proper ten days' notice required therein.
The second point, as we have stated, goes to the action of the court in trying the case in lieu of a jury. A proper consideration of this question makes it necessary to advert to the status of the Justice of the Peace in our judicial procedure. Though the office of Justice of the Peace dates from a remote period of the history of the English law, a Justice possesses no common law jurisdiction for the trial of causes. The only powers which he can exercise are those conferred upon him by the constitution and statute of his state. His court is one of special and limited jurisdiction, and none exists except where it is distinctly and expressly conferred. The powers and authority of a Justice in our state are derived from the constitution and the Code of the state and the acts passed since the adoption of the Code. If the jurisdiction sought to be exercised is not attributable to one of these sources none exists. "Matters of mere form are dispensed with, and the same technicality is not required as in suits in a court of record. The real object being to obtain substantial justice, great liberality is indulged with respect to these proceedings." 35 C. J. 552. Section 49, chapter 50, Code, provides that there shall be but one form of action which shall be denominated a civil action. And each action is a special action on the particular case, and the complaint must state in a plain and direct manner the facts constituting the cause of action.O'Connor v. Dils,
Should appellant's motion for a new trial have been granted? The statute requires the justice to transmit the transcript to the clerk of the circuit court and on receipt thereof it provides that the clerk shall file the same and docket the appeal. This was done in these cases. The clerk followed the custom of the court in docketing these cases for trial on the third day of the term. This court has held that rules for docketing of cases adopted by a court not in excess of its authority have the effect of law as to proceedings conducted in such court. The interpretation placed upon the rule will be followed by the Supreme Court unless such construction is in violation of the plain terms of the rule, or some organic or statutory law. Star Piano Co. v. Burgner,
Affirmed.