Thorn v. Thorn

47 W. Va. 4 | W. Va. | 1899

English, Judge:

This was an action of unlawful entry and detainer brought by Alva B. Thorn and Miranda Thorn against Abraham Thorn before a justice of the peace of Taylor County. The summons issued by the justice read thus: “State of West Virginia, Taylor County, to wit. To any Constable of Said County: You are hereby commanded, in the name of the state of West Virginia, to summon Abraham Thorn to appear before me, Lewis Haymond, at my office, in the district of Grafton, in said county, on the 28th day of February, 1898, at 10:30 o’clock a. m., to answer the complaint of Alva B. Thorn and Miranda Thorn in á civil action for the possession of a certain house, garden, outbuildings, and farm land situated in Knottsville district, Taylor county. West Virginia, more particularly described in the complaint to be filed in this suit, in which the plaintiffs will claim judgment for possession of said real estate, and $50 damages for its detention. Given under my hand this 20th dajr of Ferbuary, 1898. Lewis Haymond, Justice of the Peace.” The complaint filed in the suit bv the plaintiffs specifically describe the property partly by metes and bounds, and claimed that the defendant unlawfully withheld the same from the plaintiffs, who demanded possession thereof, and fifty dollars damages for its detention. On the 28th of February, 1898, the defendant failing to appear in the case, the justice waited one hour, heard the evidence offered by the plaintiffs, and gave judgment for the possession of the premises described in the summons and complaint. On the 8th of March the parties appeared by their attorney, and the defendant, in pursuance of his notice to the plaintiffs, moved the justice to set aside the judgment rendered in said action, and grant him a new trial, for the reason that the constables’ return on the summons was insufficient, and was amended according to the facts of its execution after the justice-rendered his judgment, which motion was overruled; and thereupon the defendant obtained an appeal to the circuit court, and, the cause having been docketed in that court, on April 15,1898, the defendant moved the court to quash the summons for errors appearing on the face thereof, which motion was sustained, the summons quashed, and the action dismissed, with costs. From this judgment the plaintiffs obtained a writ of error to this Court, assigning as errorthe action of the court in quashing said summons and dismissing t'he plaintiffs’ action.

The defendant appeared before the justice, and moved to set aside the judgment and grant him a new trial because the constable’s return on the summons was insufficient, and was amended according to the facts of its execution after the judgment was rendered. No motion was made to quash the summons itself. The question now presented is whether the motion to quash the summons in the circuit court did not come too late. This question was before this court in Blankenship v. Railroad Co. 43 W. Va. 135, (27 S. E. 355); and it was there held that “in an action before a justice of the peace, the defendant, not having entered a special appearance before the justice for the purpose only (and so stating in submitting his motion) of quashing the writ or return, cannot on appeal to the circuit court take advantage of any defect in the writ or return either by motion to quash or plea in abatement.” But, even if this motion could be made in the circuit court, the summons seems sufficient. The defendant is summoned to answer the complaint of plaintiffs in a civil action for the possession of a certain house, garden, outbuildings, and farm land, situated in Knottsville district. Taylor County, W. Va., more particularly described in the complaint which he is summoned to answer. This Court held in Simpkins v. White, 43 W. Va. 125 (27 S. E. 361), (Svl. point 3), “If that description can be rendered certain by extrinsic evidence, it is sufficient;” and in the case at bar the description in the summons was aided by the complaint so as to make it specific, and described the property with convenient certainty. In section 26, chapter 50, of the Code, it is provided that “no summons shall be quashed or set aside for any defect therein if it be sufficient on its face to show what is intended thereby”; and there can be no doubt that the°defendant knew what was intended by this summons, and, if he had any doubt the complaint, which was referred to in the summons, would have informed him. Again, in the case of Layne v. Railroad Co., 35 W. Va. 438, (14 S. E. 123), (Syl., point 2), it was held that: “In order to take advantage of such a defect in the summons or return, the defendant must appear for that purpose only, and must so state in submitting the motion. If he appears generally,, whether to move a continuance, or for any other purpose, he will be regarded as having waived all defects in the writ or return.” Again, we find the law thus stated in 12 Am. & Eng. Enc. Law, 487: “An appeal by a party to a case in the justice court operates as a general appearance in the appellate court, and gives that court jurisdiction of the person of the appellant. As a general rule, the irregularities in the proceedings before the justice are waived by an appeal.” Looking at the record in the light of these rulings, my conclusion is that the circuit court erred in sustaining the motion to quash said summons, and dismissing the plaintiffs’ action. The judgment is reversed, and the cause remanded.

Reversed.