Peerce v. Kitzmiller.

Decision Date06 May 1882
PartiesPeerce v. Kitzmiller.
CourtWest Virginia Supreme Court

1. Under a Constitution, which divides the government into three distinct departrnents, viz: the Legislative, the Executive and the Judicial, without special authority in the Constitution for so doing it is beyond the power of the Legislative department to authorize the courts to set aside judgments and grant new trials in cases after the term, at which the judgments were rendered, had passed, for such action would be judicial, (p. 569.)

2 The people of the State, in their sovereign capacity, have the right in adopting a Constitution for their government to do anything, which they are not prohibited from doing by the Federal Constitution, which was made and ratified by the States themselves, (p. 572)

3. Before the ratification of the fourteenth amendment to the Constitution of the United States, the Legislature might, if authorized by the State Constitution, devest vested rights of property, where such rights were not vested by contract, (p. 572.)

4. Since the ratification of said amendment such vested rights of property by a State can only be devested by c'due process of law." (p. 572.

5. A judgment founded on a tort is in no sense a contract; therefore section 35 of article VIII of the Constitution of West Virginia, which provides, that ''No citizen of this State, who aided or participated in the late war between the government of the United States and a part of the people thereof on either side, shall be liable in any proceedings civil or criminal, nor shall his property be seized or sold under final process issued upon judgments or decrees heretofore rendered or otherwise because of any act done according to the usages of civilized warfare in the prosecution of said war by either of the parties thereto," is not inhibited by section 10 of article I of the Constitution of the United States, as it does not impair the obligation of a contract. (p. 573.)

6. Section 35 of article VIII of the Constitution treats judgments as property and provides for the carrying out of the provision by "due process of law," and such judgments, as are contemplated by said section, were not to be set aside or destroyed, until by "due process of law" it was ascertained, that they were recovered "because of an act done according to the usages of civilized warfare in the prosecution of the war by either of the parties thereto." (p. 578.)

7. Section 35 of article VIII of the Constitution does not authorize the setting aside of the judgments therein specified and the granting of a new trial. The judgments must stand, until "by due process of law" it is ascertained, that they were recovered "because of acts done according to the usages of civilized warfare in the prosecution of the war." (p. 579.)

8."Due process of law" means, as used in said section, in the due course of legal proceedings according to those rules and forms, which have been established for the protection of private rights, securing to every person a judicial trial before he can be deprived of life, liberty or property, (p. 578.)

9.The setting aside of a judgment of the character embraced in the said section of our Constitution, and the granting of a new trial upon affidavits filed and an inspection of the record of the judgment, as provided in section 3 of chapter 58 of the Acts of 1872-3, even if a new trial had been authorized by the Constitution, is not "due process of law. (p 582.)

10. Section 3 of chapter 58 of the Acts of the Legislature of 1872-3, so far as it provides for the setting aside of the judgment or decree and the granting of a new trial is unconstitutional and void. (p. 582.)

Writ of error and supersedeas to a judgment of the circuit conrt of the county of Mineral, rendered on the 2d day of February, 1878, in a petition to set aside a judgment and grant a new trial, wherein John T. Peerce was plaintiff, and Ebenezer Kitzmiller was defendant, allowed upon petition of said Kitzmiller.

Hon. John B. Hoge, judge of the third judicial circuit, rendered the judgment complained of.

Johnson, President, furnishes the following statement of the case:

On the 15th day of November, 1873, John T. Peerce filed his petition in the circuit court of Mineral county, in which he alleged, that on the 20th day of April, 1866, Ebenezer Kitzmiller brought an action of trespass in the said court against him, the said petitioner, in which he sought to recover damages against him, the defendant in said action, alleged in his declaration to have been sustained by him by reason of the defendant having taken and carried away certain cattle; that on the 23d clay of March, 1869, the said plaintiff recovered a judgment in said action against the defendant for $410.00; that the petitioner, the defendant in said action, is a citizen of the Slate of West Virginia; that he aided and participated in the late war between the government of the United Stales and a part of the people thereof; and that the said judgment was recovered against the petitioner, for an act done by him according to the usages of civilized warfare in the prosecution of the said war. The prayer of the petition was, that the said judgment rendered might be set aside, and a new trial in said suit awarded him. The petition was duly sworn to by the petitioner; and the defendant was duly notified of the filing thereof.

At the May term of the said court in 1874 the said Kitzmiller appeared to said petition and demurred thereto; and leave was given him to file his answer.

On the 2d day of February, 1878, the demurrer to the petition was overruled; and the defendant filed his answer. The answer admits the recovery of the judgment; but respondent insists, that "the said judgment is final, conclusive and binding and cannot be impaired, affected or disturbed by any proceedings under said petition, because, before the judgment aforesaid was obtained, personal service was had on the said defendant, John T. Peerce, and the said Peerce appeared and pleaded to issue in the said case. The issues so made up were tried by a jury of twelve men and a verdict rendered against said Peerce. Upon said verdict the court gave judgment for the amount of the verdict; that after the rendition of said judgment and before the adoption of the present Constitution of the State of West Virginia the said judgment was duly docketed according to law in the judgment-lien-docket of Mineral county, West Virginia, and became a lien on all the lands, which the said Peerce then owned, and is still a lien on the lands he now owns; that said judgment to the extent thereof is a vested right in property and is property, to which the respondent is entitled and has good title; that said judgment is based on matters of fact tried by jury, before the present State Constitution was adopted or had any force or effect, and said judgment cannot now be otherwise re-examined than according to the rules of the common law, and this respondent cannot be deprived of his property in said judgment, without due process of law;" that the act of the Legislature of West Virginia passed March 24, 1873, upon the authority of which the petition is filed, in so far as the same may impair or affect the judgment aforesaid, is contrary to the Constitution of this State and of the United States. The respondent denies, that the acts of trespass, upon which his judgment was recovered, "were acts done by the said petitioner Peerce according to the usages of civilized warfare; but this respondent insists, that said Peerce was a mere bummer, marauder and hanger-on of the so-called Confederate army plundering the property of peaceable citizens for private purposes, considering it safer to run off the cattle of some unarmed mountaineer, than to be found in the ranks of those, who did the fighting. And these are matters of fact which this respondent is entitled to have tried, and hereby demands to have tried by a jury, before granting the prayer of said petitioner, if the court, shall be of opinion, that the same can be granted at all," &c.

On the said 2d day of February, 1878, the court below entered an order, which after overruling the demurrer and after the filing of the answer provides: "and it appearing by the record of the suit, in which said judgment was rendered, viz: the suit of Ebenezer Kitzmiller v. John T. Peerce, that pleas setting forth substantially, that the matters complained of in said suit were done in accordance with the usages of civilized warfare in the prosecution of the late war between the government of the United States and a part of the people thereof, were filed by the defendant, Peerce, and rejected or overruled by the court, the court doth set aside said judgment and award a new trial in said suit, the costs to abide the event of the suit, and doth direct, that said suit be again placed upon the docket of this court for trial." To which judgment of the court the said Kitzmiller by counsel excepted, and tendered his bill of exceptions which was signed, sealed and saved to him. The bill of exceptions shows, that in support of said petition the petitioner offered in evidence, the record of the suit referred to in the petition, which is set out in full with the special pleas filed in the suit, which pleas are of the character described in the petition, and to which pleas the plaintiff in the action demurred, which demurrer to each of said pleas was sustained by the court. The bill of exceptions concludes: "Upon which record-evidence, being all the evidence introduced in support of said petition, the court granted the prayer of said petition, set aside the judgment set forth in said petition, and granted the petitioner, John T. Peerce, a new trial in said court." To which action, &c, the said Kitzmiller excepted, &c.

To the judgment of the court setting aside said judgment and granting a new trial, a writ of error and supersedeas were allowed.

J. T....

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33 cases
  • State Ex Rel. Oscar Cosner v. See
    • United States
    • Supreme Court of West Virginia
    • 4 Marzo 1947
    ...of legal proceedings according to the rules and the forms which have been established for the protection of private rights, Peerce v. Kitzmiller, 19 W. Va. 564; it is such procedure as is within the limits of those fundamental principles of liberty and justice which underlie our civil and p......
  • Walter Butler Bldg. Co. v. Soto
    • United States
    • Supreme Court of West Virginia
    • 3 Julio 1957
    ...of legal proceedings according to the rules and the forms which have been established for the protection of private rights. Peerce v. Kitzmiller, 19 W.Va. 564; White v. Crump, 19 W.Va. 583; Williams v. Freeland, 19 W.Va. 599; Griffee v. Halstead, 19 W.Va. 602. Due process of law is such pro......
  • State v. Stevenson, 12129
    • United States
    • Supreme Court of West Virginia
    • 22 Octubre 1962
    ...... 'Due process' means procedure which follows those 'rules and forms, which have been established for the protection of private rights * * *.' Peerce v. Kitzmiller, 19 W.Va. 564. It is such procedure as is within the limits of those fundamental principles of liberty and justice which underlie our ......
  • State Ex Rel. Cosner v. See
    • United States
    • Supreme Court of West Virginia
    • 4 Marzo 1947
    ...... in the due course of legal proceedings according to the rules and the forms which have been established for the protection of private rights, Peerce v. Kitzmiller, 19 W.Va. 564; it is such procedure as is within the limits of those fundamental principles of liberty and justice which underlie our ......
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