Bee et al. v. Seaman et al.
| Decision Date | 02 April 1892 |
| Citation | 36 W.Va. 381 |
| Parties | Bee et al. v. Seaman et al. |
| Court | West Virginia Supreme Court |
When a writ of certiorari under the statute is awarded to a justice to review his judgment, in order to respond to the exigency of the writ he must certify and send the record as the writ finds it. As the record is when the writ reaches him, so it must be certified and sent. It is then too late to make contemplated or intended certificates of facts and bills of exception parts of such record, but it must be sent up as it is without increase or diminution.
The common-law function of the writ (not ancillary) was to remove the civil cause from the inferior to the superior court before judgment, where the superior court had original jurisdiction and could administer the same justice as the court below, and the case was there retained and tried. Under our statute it lies after judgment of the justice; and upon the hearing in the Circuit Court such court will review such judgment of the justice upon the merits, determining all questions arisingon the law and the evidence, and render such judgment or make such order upon the whole matter, as law and justice may require. It may in a proper case, if justice require it, set the verdict of the jury aside and award a new trial, and when the judgment of the justice is set aside, the case is not sent back but must be retained in the Circuit Court, and disposed ot as if originally brought therein.
8. Justice of the Peace Certiorari
In applying to the Circuit Court for a writ of certiorari to the judgment of a justice the general rule is that the party must present his petition within ten days after the judgment complained of is rendered according to the analogy of appeals, if the case had been tried without jury.
For the tacts to which the above rules are applied, and out of which the above points of law arise, see statement of facts in the opinion.
J G. Schilling for plaintiffs in error cited 10 S. K. Rep. 56; 9 S. E. Rep. 51; Black Jdgmts. 183, 184; 16 W. Va. 245; 14 W. Va 264; Code, c. 134 ss. 5, 6. W. A. Parsons for defendants in error cited Code, c, 50, ss. 26, 48, 49, 50, 52; 5 K H. 391; 1 Chit. p. 12, §§ 13, 14, n. 1; Code, c. 184, s. 586.
H olt, J udoe:
Oil the 9th of October, 1888, the plaintiffs below and piaiitiffs here brought suit before A. B. Thorn, then a justice of Roane county, for the recovery of two hundred dollars for damages for a wrong so styled in the summons. The summons was returnable and in fact returned before the justice, A. B. Thorn, on the 20th of October, 1888. The parties were present in person and by counsel; and plaintiffs filed their complaint in writing, which was excepted to by counsel for defendants.
The complaint states fully, but in a plain and direct manner, the facts constituting the cause of action. It is the common case of sale with warranty, effected by the false and fraudulent representations of the vendor, in which the vendee has his choice to sue in contract on the warranty or go for the fraud in tort. In this case it appears, both by summons and complaint, that the vendee chose to sue for the wrong, reciting the contract of sale and warranty as inducement, or ae an inseparable part of the facts out of which springs the cause of action, or as necessary to be stated in order to make the cause of action clearly appear; and there can be no doubt that plaintiffs have thus elected to sue for the wrong, looking at the complaint alone; for they close it by saying: therefore they (the plaintiffs) are damaged by the false represe itations and fraud of the defendants in the sum of two hundred dollars for which they sue and ask judgment. Therefore Justice Thorn, after hearing argument, overruled the exceptions to the complaint.
The sale seems to have been of a patent called the "Kentucky Churn Power," whatever that may be.
Tieir exceptions being overruled, the defendants answer-, ed orally; and the justice under the head of the case on his docket noted briefly the contents of the oral answer, as follows: "That the allegations of the plaintiffs are not true, except that of the sale and price of said power." On motion of defendants the cause was then continued until 10th November, 1888. On 10th November, 1888, it was by consent continued until 14th December, 1888; and now it appearing that the summons and complaint had been lost or taken from the magistrate's office, a copy of the original summons was substituted, and counsel for plaintiffs supplied the complaint; and on demand of defendants a jury came, six in number, according to law, but the cause was continued to a blank day (14th December, we may presume, as further appeared) and the jury held to appear upon that day; but Banks Jenkins, a juror, was by consent of parties released by the court.
And now J. N. Board, one of the plaintiffs, appeared, and in the presence of the court and the parties to the cause disclaimed any further interest in the suit, whereupon counsel for plaintiffs moved that Board be made a party defendant in the action. This appears not to have been done.
On the 14th December, 1888, the parties in person came again, and plaintiffs pleaded an amendment in writing to their complaint, saying that, as apart of the consideration for the patent right, they executed to defendants a negotiable note for one hundred dollars, and again asked judgment for the two hundred dollars damages aforesaid sustained. This was signed seriatim by S. B. Seaman, G. L. Seaman, J. N. Board, by counsel. This amendment took defendants by surprise, as they claimed by their counsel, and they moved for a continuance on that ground. Thereupon the justice had them sworn to answer as to their defence to the amended complaint, and being of opinion that they had none, as to the making and delivery of the negotiable note, overruled their motion to continue.
And now, the parties being ready for trial, the jurors were called, elected and duly impanelled and sworn according to law, and a recess was taken until 1 o'clock p, m., at which time the counsel for plaintiffs proceeded to state to court and jury the cause of action on the part of plaintiffs, and counsel for defendants their defence. The witnesses were called and sworn, and gave evidence before the court and jury, and a subpcena, duces tecum, having been served upon defendants, to produce a certain writing of letters-patent for a "churn power" and improvement in churns, the same was produced and read in evidence, also a certain contract with a certain company at Nashville, Tenn.; and here the plaintiffs rested their case.
And the defendants, to maintain the issue on their part, introduced their witnesses, who gave evidence and introduced a certain deed of conveyance of right to certain counties in Pennsylvania of an "improved churn power," and then rested their case; and after argument for plaintiffs and defendants the case together with the necessary papers was submitted to the jury, who soon after returned the following verdict: "We, the jury, find for the plaintiffs, and assess their damage at two hundred dollars and ten dollars and sixteen cents interest" signed by the foreman. Whereupon counsel for defendants moved the court to set aside the verdict as being manifestly contrary to the law and the evidence; and the court took time to consider until 15th December, 1888, 8 o'clock a. m., until which time the case was adjourned.
On said 15th of December, came again the parties by counsel, and the court having duly considered defendants' motion to set aside the verdict overruled the same, and counsel for plaintiffs having waived the right to a judgment for the ten dollars and sixteen cents interest mentioned in the verdict asked that judgment be entered for the two hundred dollars, whereupon the court rendered judgment in favor of the plaintiffs S. B. Seaman and G. L. Seaman against the defendants F. H.Bee, L. S. Wolf, and E. B. Parsons, upon the verdict of the jury, for two hundred dollars with interest from the 15th day of December, 1888, until collected, and costs. Here A. B. Thorn signs as justice.
The counsel for defendants having excepted to the ruling of the court in overruling the motion to set aside the verdict of the jury filed their bill of exceptions and prayed it to be signed, sealed and made part of the record in the case, which is accordingly done; and the said bill of exceptions is in the words and ligures following, to wit:
Here Justice Thorn signed for the last time while he was a justice in office. Justice Thorn went out of office by expiration of his term on 3d December, 1888, and on 1st January, 1889, J. M. Lester came in as his successor. The foregoing is called the "docket" of the justice, required to be kept by him in which to make certain entries. See chapter 50, § 176 et seq., Code. "So far as the entries in the docket are concerned, the form shall be regarded as immaterial, if the truth be stated so as to be intelligible." Section 180, c. 50. "Whenever it is necessary to prove a judgment or other proceeding had before a justice, or any process issued by him, or the return thereof, or any order made by him in a suit, the docket in which it is entered, or a transcript thereof certified...
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