Isaiah v. Sayre

• Decision Date: 07 April 1883
• Citation: 21 W.Va. 440
• Parties: Isaiah and John Cunningham v. Sayre et als.
• Court: West Virginia Supreme Court

21 W.Va. 440

Isaiah and John Cunningham

v.Sayre et als.

Supreme Court of Appeals of West Virginia.

Submitted January 11, 1883

Decided April 7, 1883.

1. A motion to quash a summons in unlawful entry and detainer, which summons required the defendants "to appear before the president and justices of our county court for the county of Jackson on the first day of the April term, 1880," was properly overruled, as the defendants were presumed to know at what place in the county the said court would be held. (p. 442)

2. It is regular and proper to try an action of tort against defendants, who have pleaded, without waiting for other defendants to appear and plead, (p. 442.)

3. Under section 2 of chapter 127 of the Code, where pending an action of unlawful entry and detainer the plaintiff dies, the action may be revived in the name of his heirs at law or devisees, (p. 443.)

Writ of error and supersedeas to a judgment of the circuit court of the county of Jackson, rendered on the 12th day ot November, 1881, in an action in said court then pending, wherein Isaiah and John Cunningham were plaintiffs, and Ichabod Sayre and others were defendants, allowed upon petition of said defendants.

Hon. Robert F. Fleming, judge of the sixth judicial circuit, rendered the judgment complained of The tacts of the ease are stated in the opinion of the Court.

Parsons $ Walker for plaintiffs in error cited the Code, eh. 89, note; 2 W. Va. 574; 4 Gratt 86; Code, eh. 125 § 12; 8 W. Va. 308.

Henry (C Flasher tor defendants in error cited Code, ch. 127 § 2; 12 W. Va. 516; is W. Va. 766.

Johnson, President, announced the opinion of the Court:

This is an action of unlawful detainer brought in March 1880, in the county court of Jackson county. The original plaintiff was William Cunningham, and the defendants named in the summons, were Ichabod Sayre, Austin Sayre, Win. C. Sayre, Joel Sayre, Minerva Sayre and Charles E. Ramsay. The summons was served on all the defendants. It was suggested, that the defendants Austin Sayre and Wm. C, Sayre were minors, thereupon the court appointed Geo. J. Walker, guardian ad litem, to defend their interests in the suit. The defendants, Iehabod Sayre and Minerva Sayre, appeared and moved to quash the return of service on the summons, which motion the court overruled; and the same defendants moved to quash the summons, which motion was also overruled. The said defendants, Iehabod Sayre and Minerva Sayre, thereupon pleaded not guilty. No plea was entered for any of the other defendants named in the summons.

On the 15th day of June, 1880, it was suggested, that since the institution of the suit the plaintiff had departed this life; and it being proved to the court, that Isaiah Cunningham and John Cunningham were the devisees ot the land in controversy, on motion of said Cunningham and against the protest ot the defendants, the suit was revived in the names ot said devisees; to which ruling of the court the defendants excepted. The defendant, Iehabod Sayre, was sworn before said motion was decided, and on oath stated, that It. E. Starcher, one of the justices then sitting when said motion to revive was made, was an important and material witness for defendants on the trial of the case, and that he desired to use him as such witness, and objected to said justice sitting to hear said motion to revive; which objection was overruled by the court, and said justice did hear said motion to revive, and the defendants again excepted. The case was then removed to the circuit court of said county.

On the 9th day of August, 1881, a jury was empaneled to try the issue, and it rendered a verdict for the plaintiffs, and found that "the defendants now in court are guilty of unlawfully withholding from the plaintiffs, the land mentioned and described in the summons," &c.: setting out in their verdict a full description of the land. The said defendants moved the court to set aside said verdict as contrary to the law and the evidence, which motion the court overruled, and entered judgment upon the verdict against the said two defendants; to which judgment the said defendants obtained a writ of error and supersedeas.

The first error assigned is, that the court overruled the motion to quash the return on the summons. It there was any error in said return, for which the same should have been quashed, it was as to the defendant Minerva Sayre, which error if any she expressly waived, as the record shows. It is also assigned as error, that the summons does not show when and where the defendants therein, were required to appear and answer, lucre is nothing in this assignment of error; as they were required to "appear before the president and justices of our county court for the county of Jackson, on the first day of the April term, 1880.'-The defendants are presumed to know the law, and they therefore knew when the term of the court must by law be held.

It is further assigned as error, that the jury were sworn to try the issue joined, and that they tried the case as to all the defendants when none had pleaded, except Ichabod and Minerva Sayre. This assignment does not correctly state the facts. The case was only tried as to those defendants, who had pleaded. It is regular and proper to try an action of tort, as an unlawful detainer, against defendants, who have pleaded without waiting for the other defendants to appear and plead. 1 Chitty Pleadings 97 and cases cited. It is also insisted, that it was error to try the case without assigning a guardian ad litem for the infant defendants, and requiring him to act. One was appointed, but he did not plead, and the case was not tried as to such infant defendants. It was still further assigned as error, to permit R. E. Stareher, one of the justices of the county court, which decided a...