8 W. Va. 63 | W. Va. | 1874
Lead Opinion
This is an action of debt. The writ demands of defendants $4,845 debt, and damages, $20. The declaration, in the early part thereof, demands of the defendants the same amount of debt as the writ, and the damages are stated at the close of the declaration at $20. The declaration, after demanding the said amount of debt, then proceeds to count first, in the usual form, upon a single bill alleged to be made by the defendants to the plaintiffs on the 16th day of October, 1865, payable six months after date, for $2,420.50, with interest from date, “being part of the money above demanded;” and second, to count in the usual form, upon a single bill alleged to be made by the defendants to plaintiffs, on the 16th day of October, 1865, payable twelve months after date, for $2,422.50, with interest from date, “being the residue of the sum above demanded.” The declaration then proceeds to allege that the “defendants, or either of them, have not paid the plaintiffs, or either of them, the said sum of money first above demanded, nor any part thereof,” &c.
The declaration was filed at June rules, 1872, being the rules to which the summons was returnable and returned by the proper officer.
At June rules the plaintiffs, on filing their declaration, took a conditional office judgment against the defendants, and at July rules thereafter, the conditional judgment was confirmed.
Afterwards, at a circuit court of the county of Wood, on the 26th day of March, 1873, the plaintiffs and defendant Boggs appeared in court, by their attorneys, and Boggs craved oyer of the two single bills in the declaration mentioned, which was granted by the plaintiffs, and the same with the endorsements thereon were read to him;
On the next day, to-wit: on the 27th day of March, 1873, came the parties, by their attorneys, before the court, and defendant Boggs withdrew his plea of payment, and thereupon the defendant Robinson “moved the court to quash the return of service on process as to him,” and the court oven-uled the motion, and neither party requiring a jury, the court, in lieu of a jury, proceeded to hear the evidence and to ascertain the amount the plaintiffs are entitled to recover in this action, and ascertained the same to be four thousand-eight hundred and forty-five dollars, with interest at 6 per cent, per annum from the 16th day of October, 1865,” subject to sundry credits, specifically named as to amounts and time of payment, in favor of plaintiffs against the defendants for said sum and interest as aforesaid subject to the credits aforesaid, and also for the costs of suit.
The appellants upon their joint petition to this Court obtained a supersedeas to said judgment. And it is now here insisted by the appellant’s counsel that the circuit court erred in its judgment in the cause.
The first error assigned is that the court erred in overruling the demurrer of defendant Boggs to the declaration, because there is a variance in amount between the first single bill counted on in the declaration and the single bill produced to the extent of $2.00. The declation evidently relies upon two several single bills payable at different dates, and it in fact contains two counts or two divisible matters. “If an action be brought on several bonds together (which may be done), the debt demanded should regularly be the aggregate of all the sums alleged to be due in the different counts; an error herein, would seem, however, not to be fatal. 11 East'
If a declaration contains two counts, and the defendant appears and files a demurrer to the declaration, and the declaration contains one good count — -the demurrer should be overruled.—The Duke of Bedford v. Alcock, 1 G. Wils., 248; Roe v. Crutchfield, 1 H. & M., 361; Whitney v. Crosby, 3 Caines (R. Y.,) 89; Gidney v. Blake, 11 Johns. (N. Y.,) 54; Monell v. Colden, 13 Johns. (N. Y.,) 402; Mumford, &c., v. Fitzhugh, &c., 18 Johns. (N. Y.,) 457; Power v. Ivie, 7 Leigh, 147; Hollingsworth v. Milton, 8 Leigh, 50. Where a defendant, by demurring to the whole declaration, affirms that the same is insufficient to maintain the action, and the plaintiff, by joining in the demurrer, denies such insufficiency, an issue in law is made up on the question whether, or no, there be matter enough in the declaration to maintain the action. If any one count be good, it follows, necessarily, that there is matter enough to maintain the action. The issue on the part of the plaintiff is sustained; and judgment should be given for him on the demurrer. Of this judgment the defendant has no right to complain. If he conceives a particular count to be bad, his obvious course is to demur to that count and affirm its insufficiency. The principle here laid down, it will be perceived from the terms in which, it is stated, applies not only where there is a demurrer to a declaration containing several counts, one of which is good ; but it applies also, where there is a demurrer to a single count containing several breaches, one of which is well assigned; or to a demurrer to a single count containing a demand of several matters which, in their nature, are divisible, and one of which is well claimed.—Robinson’s Old Practice, vol. 1, 282-83-84, and the authorities there cited. The
After defendant Boggs had appeared and set aside the office judgment, by demurring to the declaration, and the demurrer was overruled a defendant Boggs had filed his plea of payment and general replication thereto wras made and issue joined ; and also after said Boggs, had withdrawn his plea of payment, but on the same day, the defendant Bobinson appeared in court to the cause and moved the court “to quash the return of ser
No objections were taken to the evidence heard by the court. No motion was made to set aside the judgment and finding of the court for any cause or reason, by either defendant. We do not see any error on the face oft he judgment. We cannot therefore say that it was error for the court to render the judgment upon the declaration and proofs,as claimed by the appellants. It is true that on one of the single bills there is an endorsement signed “Edward Tracewell” that “two hundred dollars of this note is for the use of Henry J. Boggs, that amount being paid by him, May 3, 1871.” This seems to be a credit, and is endorsed with the other credits, and it is allowed by the court in the judgment. This endorsement in its form and the state of the pleadings and of the record, (if it would in any case) cannot affect the right of the plaintiff to sue as they have sued.
For these reasons, the judgment of the circuit court of the county of Wood, rendered in this cause on the 27th day of March, 1873, must be affirmed with damages according to law. And the appellees must recover their costs in this Court expended against the appellants.
Hoffman, Judge, dissented from so much of the foregoing opinion as ascertains that this Court, in the absence of a bill of exceptions to the opinion of the court below in overruling the motion of defendant Robinson to quash the return of service of process, as to him, will presume that Robinson acquiesced in the ruling of the that court upon the-motion, and, that the court acted properly and rightfully in overruling the same; and he filed the following opinion:
Dissenting Opinion
"When a defendant moves a court to allow a sheriff amend bis return on a summons in debt, and shows cause to sustain the motion, and the sheriff does amend the return, I think that the motion and amendment — or at any rate the return as amended — should be in some way entered on the record; and that, if neither the motion, the leave, nor the amendment itself, appears on the record an appellate court cannot assume that such proceedings were had.
In this case, manifestly, with the aid of counsel, the circuit court by its clerk, undertook to state in the record what was done in th'e case on the subject in question; but it is entirely silent as to any proceedings relative to the return on the summons.
JudgmeNT Affirmed.
