50 W. Va. 65 | W. Va. | 1901
J. N. Reinhart obtained a judgment against U. B. Williams before J. A. Connelly, a justice of the peace for Wetzel County, for the sum of one hundred and sixty-two dollars and costs amounting to nineteen dollars and twenty-five cents, on the 17th day of January, 1891. An execution ivas issued on this judgment January 20, 1891, directed to D. M. Keller, constable, but was returned by order of the justice by reason of the service of a writ of certiorari, issued by the circuit court of said county, to bring the case to that court to be reviewed. The certiorari was afterwards dismissed by the court. On the 20th day of February, 1892, Reinhart assigned the judgment to D. R. Meighen, and no execution was thereafter issued on the judgment nor any further proceedings had thereon 'until the 26th day of August, 1899, when D. R. Meighen brought a suit before S. A. Carney, another justice of the, peace for said county of Wetzel, on ihe judgment so obtained before Connelly, said justice making the summons returnable on the 23rd day of September, 1899. Upon the return day the defendant appeared and the case was continued by agreement for one week. On the 30th day of the same month the defendant appeared and, before the hour of trial, moved “to quash summons and dismiss the suit on the ground that the justice had no jurisdiction and for other reasons appearing on the record.” On the same day the plaintiff appeared and “after waiting due time for the defendant he failed to appear and the plaintiff filed” his complaint in which he set out the facts hereinbefore stated, alleging that no part of the judgment had ever been paid, that he had often demanded the payment of the same and that he was the owner of the judgment by assignment to him. He then introduced testimony in proof of the facts set up in his complaint, after hearing which,
From the petition for the writ of error and briefs, it appears that the circuit court took the view that the purpose of said action was, not to recover a judgment upon the old judgment, but to revive the same and have execution issued thereon; and the argument upon that proposition is based upon the language of the summons, which commands that the defendant be summoned to appear before thc.jntsice “to answer the complaint of I). B. Moighen assignee,of T. T-T. Rinehart, in a civil action for the recovery of money due on a judgment on the docket of J. A. Connelly late a justice, to show cause why said judgment should not revive and be re-entered and execution issue thereon, in which the plaintiff will demand judgment for one hundred and sixty-two dollars and- cents exclusive of interest and costs.”
Tt is deemed unnecessary to inquire here whether a justice of the peace has jurisdiction to revive a judgment upon a scire facias, under the provision of sections 10 and 11 of chapter 139, of the Codo. An action upon the 'judgment has the effect of reviving it. At common law, an action of debt upon a judgment was the only method of reviving known until the statute of Westminster 2, 13 Ed. 1, gave for that purpose the writ of scire facias. 3 Blk. 421. The right to sue upon the judgment was
Judge Holt, one of the judges who delivered opinions in O’Connell v. Dils, 43 W. Va. 55, says: “The main purpose of the summons is to bring the parties together, and then the pleadings pro and con commence, for the statute provides for their coming together and beginning the suit without any summons (section 19), and the function of the summons is for the most part accomplished, entirely accomplished, so far as relates to the statement of the cause of action. Then and there the plaintiff, in his complaint states in a brief and direct manner the facts constituting the cause of action, giving no name to his complaint, cither in contract or in tort, leaving it for the justice to give it such name or classification as he may see fit, provided he gives him a proper judgment, impliedly containing the concrete point of law wfyich springs up out of the fact alleged and proved.” He goes on to say in substance that if there is any mistake in the summons in the designation of the cause of action it may be corrected in the complaint. Judge Dekt, in the same case, maintains the same view, expressing it in different terms. That proposition was made the basis of the decision in that case. Here it will be noted that the
Tbe summons is in tbe form prescribed by tbe Code except tbe insertion therein of tbe words, “To show cause why said judgment should nokrevive and be re-entered and execution issue thereon.” Tbe requisites as to form laid down in section 26 of chapter 50 are found in the summons in this case, except that in lieu of tbe word “contract” tbe words “a judgment” are inserted and this is a substantial compliance with that requirement. It cannot be said that tbe summons is insufficient by reason of tbe omission of any. essential requirement of tbe statute. That section further provides that “No summons shall be quashed or set aside for any defect therein if it be sufficient on its face to show what is intended thereby.” If we reject tbe words “To show cause why said judgment should not be revived and be re-entered and execution issue thereon,” it appears from tbe summons that tbe purpose of tbe plaintiff is to obtain a judgment against tbe defendant and nothing else, and that judgment is to be based upon his former judgment as tbe evidence of the plaintiff’s demand. Without rejecting these words, it still appears unquestionably that one object or purpose of tbe plaintiff is to obtain such a judgment. Supposing that the defendant might infer from tbe language of tbe phrase, to which attention bas been directed, that the plaintiff had tbe further intention of reviving and taking execution upon tbe old judgment, it could only be said that tbe summons discloses two purposes in reference to tbe same demand. Under the decisions
The legal effect of the order made in the circuit court is to ■reverse and set aside the judgment of the justice ami dismiss the plaintiff’s action. For the reasons hereinbefore stated the circuit court erred in doing so. Therefore, its judgment must be reversed, and the cause remanded to the circuit court of Wetzel County for further proceedings upon the appeal.
Reversed.