62 W. Va. 457 | W. Va. | 1907
The justice in whose court this suit originated summoned E. L. Bee and R. J. Bee, his wife, to answer the complaint of the Ritchie County Bank “in a civil action for the recovery of money due on note and protest fees, in which the plaintiff will demand judgment for $205.44, with interest and costs according to law.” Besides the general denial of the plaintiff’s action, R. J. Bee filed a verified plea “that she did not sign said note for $204, sued ■ on by the said plaintiff in this action; that the name R. J. Beé signed to said note and purporting to be her signature is not her handwriting; and that the said name R. J. Bee signed to said note and purporting to be her signature was not written by her, nor by any person by her duly authorized or directed, nor with her knowledge or consent.” There were no other pleadings. The justice gave judgment in favor of the plaintiff for $240.16, with interest and costs. R. J. Bee alone appealed to, and the case was tried denovo in,' the circuit court — without additional pleadings, oral or written, so far as the record shows. The verdict was for the defendant; and from the judgment thereon the bank brings error. Neither the summons nor the. plea of defendant described the note. On the trial in the circuit court the following was the only note offered in evidence:
“ Harrisville, W. Va., May 2, 1902. Four months after date, for value received, we promise to pay to the order of Fox & Meredith two hundred and four dollars, negotiable and payable at the Ritchie County Bank of Harris-ville, West Virginia. E. L. Bee and R. J. Bee.”
Counsel and witnesses on both sides referred to this note as the one sued on, but it was clearly shown that it had
Chapter 50, (lode, is a code of practice prescribed for proceedings before justices. While no particular forms are required, section 50 prescribes what the pleadings shall be, and stricter adherence in practice to that section would save courts and litigants a great amount of trouble and expense. The pleadings prescribed are simple and easily understood, consisting of a complaint by the plaintiff and the answer of the defendant. They may be oral or in writing. If oral, the substance of them is .required to be entered by the justice in his docket; if in writing, they are to be filed by him and reference made to them in his docket. The statute requires the complaint to state in a plain and direct manner the facts constituting the cause of action, and, if more than one cause of action be stated therein, that each shall be separately stated and numbered. The answer of the defendant may contain a denial of the complaint or some part thereof, or facts constituting a defense or counter claim. Each party may except to a pleading of his adversary when not sufficiently explicit to be understood, or if it contains no cause of action or defense. If the exception is well founded, the justice shall order the pleadings to be amended. If the party refuses to amend,the defective pleading shall be disregarded. Paragraph 8 of the same section provides that “in an action or defense founded upon an account, note or other writing for the payment of money it shall be sufficient for the party to • deliver the account, note or other writing to the jus
The liberality of construction heretofore given these provisions of the statute would seem to require that we treat the summons, the justice’s docket and the note offered in evidence, and referred to as the one sued upon, as constituting the complaint of the plaintiff; and, as the parties went to trial upon this state of pleading, we must consider the case as presented. In White v. Emblem, 43 W. Va. 819, it was held not reversible error that there was no plea or issue in an action before a justice, either in the justice’s court or on appeal, where there was a full trial as upon plea and issue. See also O’Connor v. Dils, 43 W. Va. 54; Simpkins v. White, Id. 125; Weimer v. Rector, Id. 735; Meighen v. Williams, 50 W. Va. 65; Vandervort v. Fouse, 30 W. Va. 326.
Treating the pleadings as sufficient, can we reverse the judgment of the court denying a new trial? Though there was some evidence that the renewal note was signed and
It is claimed that acceptance of a renewal note is not payment of the original without express agreement to that effect. The authorities so hold. See Dunlap v. Shanklin, 10 W. Va. 662; Feamster v. Withrow, 12 W. Va. 611; Bantz v. Basnett, 12 W. Va. 772; Bank v. Good, 21 W, Va. 455; Hess v. Dille, 23 W. Va. 90; Bank v. Hanley, 48 W. Va. 690. And if fraud has been practiced the giving of the renewal note would not be treated as payment of the original, even in case of express agreement. Bank v. Good, supra, and cases cited. As the defense in this case was that the defendant never executed the note sued on, as ~to her it could not be treated as in discharge of the original paper. Upon filing her plea, we think the plaintiff was entitled to accept the plea and amend the pleadings, setting up the original note. The cause of action would have been the same. But the plaintiff did not elect to amend; and, although perhaps there was sufficient evidence tO' support the suit upon the original note, yet as to that paper no issue was tendered to the defendant, and she has not had her day in court thereon.
In Bank v. Day (Ky.), 48 S. W. 983, it is held that the plaintiff in an action on a note may, by amended petition, confess a plea of non est factum, and sot up an original note as renewal of which the note originally sued on was accepted in ignorance of the fact that it was a forgery. In Stratton v. McMakin, 84 Ky. 641, it was held that the payee of a note, after being defeated in a suit upon the renewal note on a plea of non est factum, might bring another suit upon the original indebtedness. In Bank v. Gaines, 87 Ky. 602, issue was joined upon the plea of
Seeing that the plaintiff could have accepted the defendant’s plea and set up by amendment the original note, which it neglected to do, has this court the power to now, by reversing the judgment of the circuit court, afford it the right of election? In equity causes at least, where the pleading's or the evidence are so defective that the court is unable to decide the real question in controversy, it becomes the duty of the court, before proceeding to hear and finally pass upon it, to cause such defects to be removed; and if the inferior court fails to discharge this duty, the appellate court will, for that reason alone, reverse and remand the cause. In Blue v. Campbell, 57 W. Va. 34, 36, and Lamb v. Laughlin, 25 W. Va. 300,
The true reason for the Tule of practice so announced, justifying this Court in reversing a decree or judgment and, upon remanding the case, giving leave to correct the pleadings and proof, is, it seems to us, that, in order that justice may be done, opportunity should bo given the parties to perfect a case which seems justified by the facts and without which no proper decree or judgment can be pronounced, and that the parties may not be concluded in the same or some subsequent suit, by the plea of former adjudication or the like, from proper redress or relief in the premises. The rule does not seem to us to be intended for a case like the one at bar, where, upon the tender of a plea of non est factum,, the plaintiff had the election to accept the plea as true and to amend and rely upon the original cause of action and did not do so. The correct rule we think is stated in the Kentucky case of Bank, v. Cash, supra: that the plaintiff is not entitled to judgment and must be regarded as having elected to stand on the case as made by the pleadings and as having refused to amend when opportunity was offered. This conclusion would preclude reversal'on the first ground relied upon.
The giving and refusing of instructions are also assigned as error. The plaintiff requested fourteen instructions, of which the third, fourth, fifth, sixth, seventh, ninth, tenth and fourteenth were refused, and wo think rightly. The third is based upon the erroneous proposition that, because the defendant upon receiving notice of protest of the note sued on remained silent with respect to her claim
We therefore affirm the judgment of the circuit court, but without prejudice to the plaintiff in a new action upon the original note.
Affirmed.