77 W. Va. 316 | W. Va. | 1915
We are of opinion that a writ should be awarded substantially as prayed for, prohibiting the Hon. William S. O’Brien, Judge of the Circuit Court of Webster County, T. L. Gregory, D. 0. Hoover, Deputy Sheriff, and John R. Dyer, Clerk of said court, from all further proceedings, by execution or otherwise, to enforce payment of what purports to be the judgment by said court, pronounced on July 24, 1915, in favor of said Gregory, and against petitioner, George E. Rose, for costs, aggregating thirty-one dollars and ninety-five cents, as taxed by said clerk, and, incurred by him, in a certain suit then pending in said court, upon an appeal from the judgment of a justice, in favor of the said Rose, for the sum of two dollars and thirty cents, interest and costs, in a civil action brought before said justice.
The facts justifying this writ, as shown by the petition and record, are that the whole amount' sued for and in controversy before the justice, so far as plaintiff was concerned, was the sum of two dollars and thirty cents, for which the justice rendered judgment against Gregory. Gregory, however, appeared and filed a pretended bill of sets-off or counterclaim, amounting to eighteen dollars and fifteen cents, but offered no evidence before the justice in support thereof, and after-wards applied for and was awarded an appeal by the justice to said court.
The rules and principles enunciated in McDonald Colliery Co. v. Crotty, 69 W. Va. 407, which we adhere to, are clearly decisive of this case. We there held that a defendant in an action before a justice cannot by filing a fictitious counterclaim or set-off raise the amount in controversy so as to bring the ease within the appellate jurisdiction of the circuit court. In the case at bar defendant by filing his pretended claim actually procured the justice to award him an appeal, and got the case transferred to the circuit court, and to that extent had the benefit of an appeal. But having obtained this advantage and procured a trial in the circuit court he made no pretense to sustain his claim, but allowed the evidence of plaintiff to go unchallenged.
This case presents a stronger case against the appellate jurisdiction of the circuit court, if anything, than was presented in McDonald Colliery Co. v. Crotty, supra. Here defendant was given an opportunity before the court and jury to show the virtue of his claim, or that it was not a mere invention to remove the case from the jurisdiction of the justice, but he made no effort to do so.
If the practice pursued in this ease was tolerated it would always be possible for litigant» of petty controversies before justices of the peace to carry them by appeal to the circuit court, and thereby to deprive those tribunals of the jurisdiction properly belonging to them for the prompt and expeditious disposition of small causes.
The circuit court being thus without jurisdiction its judgment was a nullity and enforcement thereof should be prohibited as indicated.
Writ awarded.