94 W. Va. 432 | W. Va. | 1923
Defendants demurred to plaintiffs’ summons in unlawful entry and detainer; the court overruled the demurrer and certified the questions arising under the demurrer and his action thereon, for review, to this court.
There are two grounds of demurrer: (1) that the summons does not show that defendants have not withheld the premises over three years prior to the institution of the action; (2) that the summons demands $150.00 as damages
We have not been cited to any case in the Virginias arising under this statute which holds that the summons, which takes the place of the declaration, must aver that the defendant has withheld the property in controversy less than three years before the institution of the action; nor have we been able to find by diligent search any such decision. In that valuable work, Burks Pleading and Practice (2d ed), sec. 86, the author states that the summons should show on its facé that possession has not been held over three years, which is the limitation prescribed by the statute. The reason for so holding is that the action is statutory, and it is believed that the limitation is of the right and not merely of the remedy, and therefore should be pleaded. We are cited to Lambert v. Ensign Mfg. Co., 42 W. Va. 813, which was an action arising under see. 5 of chap. 103 of the Code, for death by wrongful act, and which statute requires “that every such action shall be commenced within two years after the death of such deceased person.” The declaration in that case averred that the wrongful death was caused in November, 1892, and the issuance of the writ, which was made a part of the record by oyer, was commenced on the 24th day of January, 1895, more than two years after the wrongful act and in the face of the statute. It appeared from the face of the record that the suit was instituted too late and was subject to demurrer. In the instant case there is nothing in the record to show when the unlawful detainer began. The Lambert case is quite different from the one before us. The commencing of the action within three years from the time of the unlawful entry or detainer is an essential element of the right to sue; and before there can be a recovery it must appear affirmatively. It can be controverted, and if so it becomes a fact to be determined by the court or jury. Hicks v. City of Bluefield, 86 W. Va. 367. The only plea which the defendant can file under the statute is that of “not guilty,” and the question of three years limitation is raised under that issue. This proceeding in the circuit court was designed as a summary and speedy remedy for the recovery of .the possession
Does the demand for damages for the detention render the summons demurrable? We do not think so. The right here sought to be vindicated is possession of the premises, and the damages for the detention thereof is a consequence and is not necessary to the substantial right. The statute, chapter 89, does not in terms provide for damages for the unlawful detention. The allegation of damages in a summons may be treated as surplusage. Surplusage does not vitiate a pleading. Thomas v. Electrical Co., 54 W. Va. 395. It is not a subject for demurrer. Stephen on Pleadings, 424; Lydick v. B. & O., 17 W. Va. 445. We find no error in the action of the lower court in overruling the demurrer, and so answer the questions certified.
Ruling Affirmed.