| W. Va. | Dec 30, 1896
Lead Opinion
Patrick O’Connor sued William Dils, before a justice of the county of Kanawha, fora certain sum of money lost at gambling. He moved to quash summons, because it summons him to answer an action “for damages for a wrong” instead of “money due on contract.” The justice overruled the motion, but rendered final judgment in favor of
There are two questions presented for consideration: First. Was the summons part of the pleadings, and, if so, had the court a right to amend it? Hecond. Is the summons sufficient to cover the case made out in evidence? If the summons is a part of the pleadings, the circuit court had a right to amend it, under clause 10, section 50, c. 50, Code, which is in these words : “The pleadings maybe amended at any time before the trial or during the trial when by such amendment substantial justice will be promoted.” It is provided by clause 2 of same .section that the i-deadings “may be oral or in writing,” and this would indicate that the summons is not to be considered part of the pleadings, but, having served the purpose of bringing the defendant into court, it had fulfilled its mission, and therefore was no longer to be regarded, and the motion to strike out the evidence was properly overruled, as th'e pleadings were oral, and written out in the justice’s record, as appears from the transcript. If the summons is to be regarded in the light of a pleading, or apart thereof, the justice had the right, to amend the same; and this he can do and did do by entry of the oral pleadings on his docket. The effect being to produce the amendment, it is not necessary to set out in words that the summons is hereby amended by striking out certain words and inserting others, but the additional pleading and the summons will be read together, and all unnecessary words be regarded as surplusage. That being the case, the summons, as amended, would read that the defendant was summoned or called upon to snswer an action for money won by him from the plaintiff at gambling. This would give defendant complete notice of the plaintiff’s cause of action. In the case of Fouse v. Vandervort, 80 W. Va. 334 (4 S. E. 302,) it is said : “The summons is not in all respects intended to be a substitute in justices’courts for the declaration in courts of records. And especially is this so in regard to stating the cause of action, because the statute ex
In the first place, there is hut. one form of action, which is a civil action, and this determines the character of the summons. Then all that follows after the words “civil action” in the summons, to wit: “for money due on contract,” or “for damages for a- wrong,” is a statement of the cause of action, and is, therefore, pleading to that extent, and lienee would he amendable, not by a change in the summons, hut by the complaint, either oral, entered on the justice’s docket, or in writing. This is why no provision is made for the amendment of the summons, for the complaint does that to the extent the summons states the cause of action. The form of the summons given is not intended to he unchangeable, hut section 2(1 provides that it shall he in such “form or substance,” and also provides “hut no summons shall he quashed or set'aside for any defect therein if it he sufficient on its face to show what is intended thereby.” Hence the conclusion follows that the legislature, in using the words “money due on contract” or “for damages for a wrong,” as the case may he, was not prescribing the form of the complaint, hut was simply
Concurrence Opinion
{concurring).
Chapter 50 of the Code, containing two hundred and thirty-nine sections, is intended to be a complete code . of procedure for justices of the peace. It provides (section 49) that there shall be but one form of action which shall be denominated a civil action. Each action is a special action on the particular case, and the complaint must state in a plain and direct maimer the facts constituting the cause of action. The copy of the complaint is not served, but the suit is instituted and the parties are brought together by the service on the defendant of a summons, which makes the broad classification of (1) a civil action for the recovery of money due on contract; (2) for damages for a wrong, as the case may be, which comprehends such civil wrongs as do not arise from
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 lie-ginning the suit without any summons (section 19), and the function of the summons is for the most part accomx>lished, —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 plain and direct manner the facts constituting the cause of action, giving no name to his complaint, either 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 the proper judgment impliedly containing the concrete point of law which springs up out of the facts alleged and proved. Ho that the plaintiff does not fail, and there is no good reason why he should fail, by reason of the mistake he may make in the summons of designating his cause of action in this class of cases as belonging to contract or non-contract, — a mistake, if any, at once corrected by his complaint. This must be the true construction, for, as we have seen, the very object. of this system of pleading is to enable the justice to apply the proper rule of law to the facts alleged and proved, and give the proper judgment thence arising. Any other view would, at the first step, thwart the main purpose of this Code called chapter 50, by entangling the plaintiff in trying to give the right name to his summons, when the breach of duty should happen to fall within the ill-defined space within which tort and contract mingle or blend or overlie each other in ways partly plain and familiar and partly obscure (see Bish. Noncont. Law, § 72), and comprehending the doctrine of naming a tort and suing on a contract; thus ensnaring the plaintiff into the decision at his peril of legal questions of nomenclature', etc., Avhich it is the main purpose of this new system to avoid. And clauses 9 and .10 of section 50 of chapter 50 imply that the summons needs no amendment in that regard, by providing that before the trial and on the trial the pleadings may be amended, or a variance between proof and the allegations of a pleading may be disregarded
Pleadings under the Oode system are to he liberally construed, and so dealt with hy construction and privilege of amendment as to subserve the administration of substantial justice between the parties. See 4 Enc. PI. and Prac. 749. But what was this transactien according to its facts? It was a contingent agreement that defendant, should have plaintiff’s money if he heat plaintiff' at. a game of craps. This he did, and got plaintiff’s money, with plaintiff’s consent. The agreement was made and executed, and, without something to intervene, the maxim, “ Volenti non fit injuria,” would apply. But now the statute conies in, and says, “Your contract was void and each of you was hound to know it,” and says further (section 2) that plaintiff, the loser, may recover the money hack from defendant, the winner, hy suit in court or before a justice, according to the amount or value; thus binding on defendant the personal duty of refunding to plaintiff the money. This duty imposed hy law to refund money obtained by unlawful contract defendant has violated, tíee 1 Poll. Jur. 81, 82. The executory contract of gaming was the occasion of executing it; the execution of it the statute created into a cause of action against the will of the defendant. This duty to refund, this right to have refunded, was not created hy any contract, express or to he implied from any facts in the case. It contained hut one element in
From this we have enough to see that, if plainiff had in his summons followed the common-law method of looking at the cause of action quoad the. form of procedure, he would have said in a civil action for the recovery of money due on (quasi) contract; and on the motion to quash, which no doubt would have been made, the plaintiff could have, made two sufficient answers : (1) It is not the business of Code pleading to create rights and their correlative duties; but it is a method of procedure to enforce them, as distinguished from the law which gives or defines the right (Poyser v. Minors, 7 Q. B. Div. 329, 333); and this is a quasi contract under the substantive law. (2) What is there on the face of the summons to show that my cause of action is not what I call it — money due on contract? Therefore the motion would on both grounds have been properly overruled; but if it had been sustained, and the amendment been allowed, substituting damages for a wrong, and the complaint had been filed stating in a plain and direct manner the facts constituting the cause of action, the motion to quash would have been again made by defendant’s attorney,' not only as a matter of caution to save the point, but perhaps in analogy to common-law procedure, with something more of plausibility. But now the plainiff can meet him with some half a dozen sufficient answers: (1) This now appears to be a noncdntract duty, which has been violated — a tort ex contractu. If has been created by statute because of the execution of a contract, but against defendant’s will. It is therefore a wrong at
As no error in the pleadings has been pointed out, and as I have not been able to discover any, I take for granted that substantial justice did not require any to be made, and that the judgment, which is plainly right on the merits, ought to be affirmed.
Affirmed.