158 S.E. 785 | W. Va. | 1931
Plaintiff sued in ejectment and defendant pleaded the general issue, and by special plea set up a former adjudication and filed disclaimer. The court permitted the plea of res judicata to be filed over plaintiff's objection, and issue was joined thereon. That issue was submitted to the court by agreement. The court sustained the plea and dismissed the case, whereupon this writ followed.
Two questions arise: (1) Does section 30, chapter 90, Code 1923, (Code 1931,
The code section above cited reads: "The defendant may demur to the declaration, as in personal actions, or plead thereto, or do both. But he shall plead the general issue only, which shall be, that the defendant is not guilty of unlawfully withholding the premises claimed by the plaintiff in the declaration. Upon such plea, the defendant may give in evidence any matter, which is pleaded in the former writ of *537 right, would have barred the action of the plaintiff." We will discuss the first question.
The action of ejectment is of comparatively recent origin, and was evolved from the ancient real actions at common law for the purpose of avoiding the technical difficulties and fictions pertaining to those actions. It supersedes the old possessory and droitural actions such as writ of entry, writ of right, writ of formedon in descender, and the like, and provides a simple and speedy method whereby any person who has a subsisting interest in the premises claimed and a right to recover the same or to recover the possession thereof or some share, interest or portion thereof, may assert his right. Warville on Ejectment, chapter 1; Code 1923, chapter 90, section 4. It may be well to repeat here the observation of JUDGE HOLT in Clark v. Perdue,
This brings us to the second question: Did the record of the former trial estop plaintiff from maintaining his present action? The record of a former trial between plaintiff herein, Reuben O. Zirkle, and Three Forks Coal Company was tendered and exhibited with the plea and considered by the court, wherein it appears that Reuben O. Zirkle instituted two former suits in the circuit court of Randolph County, one suit against the defendants herein, doing business as partners under the name of Moore, Keppel Company, and the other against them as trading and doing business under the name of Three Forks Coal Company, both of which suits were for the recovery of a certain identical sum of money from defendants for mining coal within five feet of the division line between the lands owned by plaintiff and defendant. It was stipulated that the result of the suit against defendants trading as Three Forks Coal Company should operate as a satisfaction of the other suit, and that Three Forks Coal Company should be treated as the owner in fee simple and possessed of the tract of land adjoining the tract of plaintiff (on which the trespasses were alleged to have been committed by mining coal within five feet of the line thereof). Defendant denied having mined within five feet of plaintiff's line, and it became necessary to establish the location on the ground of that dividing line. Surveys were made and the decision of the case turned upon the true location of that line upon the ground. This controlling question was submitted to the jury as follows: "Where do you find to be the true location of the line in question running from the two maple sprouts N. 59 E. 181 poles, as claimed by plaintiff or as claimed by defendant? The jury answered: "Line No. 1 as shown by official map." Verdict for plaintiff was returned, and after a remittance of $500 for one alleged trespass was made, judgment was rendered for plaintiff for three trespasses over or within five feet of the division line as established by the jury. The case came to this Court and was affirmed in
The judgment is affirmed.
Affirmed. *542