85 W. Va. 364 | W. Va. | 1920
In a case originating in a justice’s court and pending in the circuit court upon an appeal by defendant from the judgment of the justice against him by default, the following questions have been certified to us for decision. “‘(1) Whether the summons upon its face is void, or only voidable; (2) Whether the summons could be amended by inserting the amount sued for of $3(50.00 therein; (3) Whether the bill of particulars filed before the justice on the trial had'before him cured the defects in the summons as to the amount sued for.”
It appears from the record before us that the only appear-
After the case was docketed in the circuit court the plaintiff before' any other action had been taken first moved the court to allow him to amend the summons as above indicated, which motion was resisted by defendant who also interposed a motion to quash the summons and dismiss the action. .
The court did not directly pass on the several questions certified to us. After noting the motions to amend and to quash and reciting in its order that it appeared that a typewritten complaint or bill of particulars had been filed by plaintiff on the trial before the justice laying the damages at $210.00 and that it appeared that plaintiff had requested the justice to issue summons against defendant for'$300.00 damages, the opinion and order of the Court was that the appeal by defendant operated as a general appearance to the action and waived all defects in the summons, and therefore overruled his motion to quash and sustained plaintiff’s motion to amend the summons.
The so-called bill of particulars of the plaintiff filed before the justice is strictly a formal complaint setting forth fully the plaintiff’s cause of action and demanding $210.00 damages. The summons as is often the case in a justice’s court was not relied on and did not constitute the complaint. The purpose of the summons, generally speaking, is to brina the defendant before the justice to answer the complaint of the plaintiff; that is its form prescribed by statute. The pleadings are different. They may be oral, when the statute requires the justice to enter the substance thereof on his docket; or in writing, when the filing thereof is to be noted on the docket. The complaint is what the defendant is called upon to answer, not the summons, and if he appears thereto without summons, or defective or even void summons, the justice thereby acquires jurisdiction of the action and to render personal judgment against him.
Section 4 of Rule 1 of this Court would deny the right to certify questions to us for decision until the court below has
It seems to he well settled in this State in accordance with the rulings of the circuit court that an appeal by defendant from the judgment of a justice against him operates as a general appearance, and that he thereby waives all defects in the summons, and all irregularities in the proceedings before the justice. Thorn v. Thorn, 47 W. Va. 4; Dadisman v. W. Va. East. Tele. Co., 69 W. Va. 43, 45; C. & O. Ry. Co. v. Wright, 50 W. Va. 653, 655, and authorities cited. But as the effect of such, appearance presents no question arising upon the sufficiency of the process or return of service thereon, or the sufficiency of any pleading in the case, the correctness of the ruling of the court thereon is a question reviewable here only on writ of error. ,
As the questions certified in the opinion of the court have become moot or immaterial, and were only so indirectly passed upon, we deem it unnecessary to otherwise respond thereto.
■Certified questions dismissed.
