68 W. Va. 664 | W. Va. | 1911
Lee brought an action against Edwards before a justice of Wirt county for the recovery of sixty Leghorn pullets of the value of forty cents each, and the total value of $24, and on trial the justice rendered a judgment against Edwards that Lee recover thirty pullets, if to be had, and if not to be had, then the sum of $7.50, their alternative value. The defendant, Edwards, took an appeal to the circuit court. Lee moved the court to dismiss the appeal, ancl the court having refused to do so, thus entertaining the appeal, Lee asks from this CoTirt a writ of prohibition to prohibit the judge of the circuit court from proceeding further with or trying the appeal.
The defendant sturdily insists that an appeal lies for him, and that the circuit court has jurisdiction and may lawfully entertain the appeal. The defendant insists that this jurisdiction is not to be tested by the judgment amount against him, but that jurisdiction is to be tested by $24, the amount of the plaintiff’s claim. We cannot concur in this view. The Code says that an appeal shall lie from the judgment of a justice in the circuit court “when the amount in controversy on the trial before the justice exceeds Fifteen Dollars, exclusive of interest and costs.” Chapter 50, § 163. If the plaintiff takes an appeal from the justice the amount claimed in his summons or complaint will test the right to an appeal; but if the defendant asks an apeal the test is the amount of the principal of the judgment, unless the defendant filed an offset or counter claim and was defeated as to it. Why is the test as to the defendant the amount of the recovery against him? Because that is the extent of his loss or grievence. The object of the statute limiting appeals to fifteen dollars is to prevent protracted litigation over small amounts of money, and in such case the defendant is not harmed over fifteen dollars. This test is almost universally acknowledged as to. appellate courts. 2 Cyc. 559; Harman v. City of Lynchburg, 33 Grat. 37: Gage v. Crochet, 27 Id. 735; Walker v. United States, 4 Wall. 163 (18 L. Ed. 319). This Court has said so on several occasions as will be seen in
There is no right to this appeal. Such an appeal is not warranted by law, it is a nullity. 'Lee cannot be compelled to answer it. There is no jurisdiction for it, and therefore we award the prohibition.
Writ Awarded.